George Gikubu Mbuthia v Kenya Power and Lighting Company Ltd [2010] KECA 152 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal from the ruling of Mwera, J is arguable
- 2.Whether, if the stay sought is not granted, the success of the intended appeal would be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The court was not persuaded that the nullity argument was arguable, as it rested on the applicant's own failure to serve summons.
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.
Nugatory-value test under Rule 5(2)(b)
The applicant failed the nugatory test even assuming arguability, because the respondent could refund any taxed costs paid.
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.
Invocation of sections 3A and 3B of the Appellate Jurisdiction Act
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.
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.
Legal principles established
#- 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
#- 1.The notice of motion dated and lodged in this Court on 6th May, 2010 is dismissed
- 2.Costs of the motion awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
The notice of motion is dismissed with the costs thereof to the respondent.
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.
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.
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
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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.