Peter O. Ngoge T/A O.P. Ngoge & Associates v Washington Okumu Jalango [2010] KECA 88 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stay a High Court ruling, holding that fear of a party dying is not enough to justify a stay pending appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeals are arguable (not frivolous) under rule 5(2)(b) of the Court of Appeal Rules
- 2.Whether the intended appeals, if successful, would be rendered nugatory if the stay of execution and mandatory injunction sought are not granted
Key legal issues
#Whether the intended appeal is arguable under rule 5(2)(b)
The Court found the intended appeals may well be arguable, or not frivolous, based on the applicant's contention that the learned judge proceeded as if the matter were a reference and her inconsistent findings on the retainer.
The Court noted the applicant had identified arguable points: that the judge dealt with the application as though it were a reference, and that she found there was a dispute on the retainer yet later ruled there was none. On the settled rule 5(2)(b) test, the first limb only requires that the appeal not be frivolous, a low threshold which the applicant met on those grounds.
Whether the appeal would be rendered nugatory without a stay or injunction
The Court was not persuaded that the success of the appeals would be rendered nugatory if the prayers were declined; the only basis advanced was the possibility of death or the respondent absconding, which the Court rejected as novel and insufficient.
The applicant argued the appeals would be nugatory if either party died or if the respondent, an international professor, absconded. The Court held that accepting death or its possibility as a condition for stay would make all applications between human beings allowable as a matter of course. No other basis was advanced, so the second rule 5(2)(b) condition failed and the applications were bound to fail.
Legal principles established
#- An applicant under rule 5(2)(b) of the Court of Appeal Rules must satisfy two conditions: that the intended appeal is arguable (not frivolous) and that, if successful, it would be rendered nugatory unless a stay or injunction is granted.
- In dealing with rule 5(2)(b) applications the Court of Appeal exercises original jurisdiction and applies its mind de novo; the exercise is not an appeal from the trial judge's discretion.
- The mere possibility of the death of a party is not a valid basis for finding that an appeal would be rendered nugatory.
Court orders
#- 1.The application for stay of execution and mandatory injunction is dismissed
- 2.The ruling applies to both Civil Application No. Nai. 22 of 2008 and Civil Application No. Nai. 23 of 2008
- 3.Costs of both applications to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Civil Application No. 259 of 2007 (with HCCC Misc Application No. 260 of 2007)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (invoked with the inherent jurisdiction, rule 1(3) of the Court of Appeal Rules and Section 3 of the Judicature Act)
- Consolidated with
- Civil Application No. Nai. 23 of 2008
Relief refused
#Stay of execution of the ruling and orders of Nambuye, J. dated 15th February 2008 pending the intended appeal
Although the intended appeals may be arguable, the nugatory limb was not satisfied; the possibility of death of a party is not a proper basis for a stay
Mandatory injunction compelling the respondent to pay Kshs.1,297,939 per the certificate of taxation, and in default leave to levy execution
The applicant failed to establish the second condition under rule 5(2)(b); no basis other than possible death of a party was advanced
Costs
Costs of both applications shall abide the outcome of the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the two conditions to be satisfied by an applicant are first, that he has an arguable appeal, in other words, the appeal is not frivolous and second, if a stay is not granted the appeal, if successful would be rendered nugatory
In dealing with rule 5(2)(b) applicants, this Court exercises original jurisdiction and this has been so stated in a long line of cases decided by this Court.
If we were to accept death, or the possibility of it, as a condition for granting a stay or injunction, then all applications between human beings will be allowed as a matter of course since human beings are appointed once to die!
That being our view of the matter, applications are bound to fail and we so order. This ruling shall apply to this application and Civil Application No. Nai. 23 of 2008. Costs of both applications shall abide the outcome of the appeal.
Issues in the judgment
#The judgment states the certificate of taxation was issued on two different dates in the same record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter O. Ngoge T/A O.P. Ngoge & Associates v Washington Okumu Jalango [2010] KECA 88 (KLR)", Case Analysis (2010). Civil Application No. 22 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/88/eng@2010-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.