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Court of AppealDismissedCivil Application No. 96 of 2010

George Gikubu Mbuthia v Kenya Power and Lighting Company Ltd [2010] KECA 152 (KLR)

Court of Appeal
16 July 2010
1,407 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to halt payment of taxed costs to Kenya Power because the company could refund the money if the appeal later succeeded.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi (Omolo, Bosire and Waki, JJA) on a single-judge application for stay of execution and stay of further proceedings in an intended appeal against an order of Mwera, J dated 3rd May 2010, which had rejected the applicant's prayers to stay two certificates of taxation totalling K.Shs.239,279 issued against him in favour of Kenya Power and Lighting Company Ltd. The applicant sought orders under sections 3A and 3B of the Appellate Jurisdiction Act; the court treated the application as one under Rule 5(2)(b) of the Court's Rules, doubting the relevance of those sections. Applying the twin Rule 5(2)(b) test, the court first expressed doubt that the intended appeal was arguable: the applicant's nullity argument - that his suit in H.C.C.C. No. 837 of 2000 was a nullity because he and his co-plaintiff never served summons, making all subsequent orders and the certificates of taxation nullities - was an ingenious attempt to avoid his own obligation. Second, and decisively, the applicant failed the nugatory test: he conceded he could pay the taxed costs, and the court was satisfied that the respondent, a large public company, would be able to refund any money paid if the intended appeal later succeeded. The motion was accordingly dismissed with costs to the respondent. The decision binds subordinate courts and the High Court on the requirement that both limbs of the Rule 5(2)(b) test must be satisfied before stay is granted.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal from the ruling of Mwera, J is arguable
  2. 2.Whether, if the stay sought is not granted, the success of the intended appeal would be rendered nugatory

Key legal issues

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01

Arguability of the intended appeal

Holding

The court was not persuaded that the nullity argument was arguable, as it rested on the applicant's own failure to serve summons.

Reasoning

The applicant contended that Civil Case No. 837 of 2000 became a nullity because summons were never served, rendering all subsequent orders and the certificates of taxation nullities. The court noted it was the plaintiff's own duty to serve summons, and that relying on their own default to assert nullity was an ingenious attempt to avoid obligations. The court expressed doubt, putting it no higher, that this would be an arguable point.

p. 3
02

Nugatory-value test under Rule 5(2)(b)

Holding

The applicant failed the nugatory test even assuming arguability, because the respondent could refund any taxed costs paid.

Reasoning

Even assuming the intended appeal was arguable, the applicant had to show that refusing the stay would render its success nugatory. He conceded paying the taxed costs was not a problem and insisted only that he ought not pay based on nullities. He did not suggest the respondent could not refund; the court was satisfied a large public company like the respondent could refund any sums paid, so the motion failed.

p. 3
03

Invocation of sections 3A and 3B of the Appellate Jurisdiction Act

Holding

The court held the application properly fell to be considered under Rule 5(2)(b) of the Court's Rules, questioning the relevance of sections 3A and 3B.

Reasoning

The applicant had invoked sections 3A and 3B of the Appellate Jurisdiction Act, but the court observed it did not know what those sections had to do with the matter, stating they are meant to deal expeditiously and justly with matters before the court. It took the application as one for stay of execution and stay of further proceedings under Rule 5(2)(b) of the Court's Rules.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the court both that the intended appeal is arguable and that, if stay is refused, the success of the appeal would be rendered nugatory.
  • A party cannot rely on its own failure to serve summons to contend that its own suit and subsequent proceedings are a nullity.
  • Where the respondent's ability to refund monies paid is established, refusal of a stay does not render the appeal nugatory.

Court orders

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  1. 1.The notice of motion dated and lodged in this Court on 6th May, 2010 is dismissed
  2. 2.Costs of the motion awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 837 of 2000
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act; Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the Certificates of Taxation dated 20th March, 2007 and 18th November, 2009 and stay of further proceedings pending the intended appeal and Civil Appeal No. 114 of 2006

The applicant failed to demonstrate that refusal of the stay would render the intended appeal nugatory, since the respondent, a large public company, would be able to refund any money paid; the arguability point was also doubtful

p. 3

Costs

The notice of motion is dismissed with the costs thereof to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Under Rule 5 (2) (b) the applicant was obliged to satisfy the Court on two points, namely that his intended appeal from the decision of Mwera, J is an arguable one i.e. one which is not frivolous, and that if we do not grant the orders he is seeking before us and his intended appeal were to eventually succeed, that success would have been rendered nugatory by our refusal to grant him the orders.
p. 2Rule 5(2)(b) twin test for stay pending appeal
we are satisfied that the respondent, which is a large public company, will be able to refund any money which the applicant pays to them now and that being the view which we take of the matter the applicant’s motion before us must fail
p. 3Nugatory test - ability to refund defeats stay
We accordingly order that the notice of motion dated and lodged in this Court on 6th May, 2010 be and is hereby dismissed with the costs thereof to the respondent.
p. 3Final orders - dismissal of the motion with costs

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "George Gikubu Mbuthia v Kenya Power and Lighting Company Ltd [2010] KECA 152 (KLR)", Case Analysis (2010). Civil Application No. 96 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/152/eng@2010-07-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.