Five Forty Aviation Ltd v Tradewinds Aviation Service Ltd [2010] KECA 271 (KLR)
The bottom line
#Kenya's Court of Appeal paused a Kshs.20 million judgment against an airline, confirming even one arguable point can secure 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 appeal is arguable and not frivolous
- 2.Whether the intended appeal, if successful, would be rendered nugatory unless stay of execution and stay of further proceedings are granted
Key legal issues
#Whether the intended appeal was arguable
The Court found the intended appeal arguable on two points: the invocation of Order XXXV where a defence and counter-claim were already on record, and the trial judge's reliance on documents not produced before him.
The Court noted the respondent applied for summary judgment after the applicant had already filed a defence and counter-claim, raising the question whether Order XXXV of the Civil Procedure Rules could be invoked in those circumstances. It also observed that the learned judge referred to bulky charge notes although those documents had not been produced or attached to the supporting affidavits. Applying the settled principle that even one arguable point suffices, the Court held the appeal was not frivolous.
Whether the intended appeal would be rendered nugatory if stay was refused
The Court was satisfied that the applicant would suffer loss if the decretal sum of about Kshs.20 million was paid out, and that refusal of stay could render the appeal nugatory.
Counsel for the applicant submitted that payment of the decretal sum of approximately Kshs.20 million would adversely affect the applicant's business operations. The Court posed to itself the question whether it could be seriously argued that the intended appeal was frivolous and that the applicant would suffer no loss if the orders were refused, and answered that it did not think so. It also gave effect to the overriding objective, considering the grant of stay just and fair in the circumstances.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy two cumulative requirements: an arguable appeal and that the appeal will be rendered nugatory if stay is not granted.
- A single arguable point suffices to meet the arguability threshold under rule 5(2)(b).
- In a rule 5(2)(b) application the Court exercises original jurisdiction and considers the matter de novo; the exercise is not an appeal against the trial judge's discretion.
Court orders
#- 1.Stay of execution granted pursuant to the ruling and order of Muga Apondi, J. dated 28th January 2010 pending filing, hearing and determination of the intended appeal
- 2.Stay of all other proceedings pursuant to that ruling granted pending the intended appeal
- 3.Costs of the motion to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi (Milimani Commercial Courts)
- H.C.C.C. No. 577 of 2009
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
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.
For the foregoing reasons, we allow this application and grant the orders sought in the notice of motion dated 1st March, 2010.
Costs of this motion shall abide the outcome of the appeal.
There may or may not be other arguable points but as we have said before even one arguable point is sufficient for the purposes of rule 5(2); there need not be a chain of arguable points to sustain an application.
The Court will grant a stay or an injunction as the case may be if satisfied, firstly, that the applicant has demonstrated that his appeal or intended appeal is arguable; and secondly, that unless a stay or injunction is granted his appeal or intended appeal if successful, will be rendered nugatory.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Five Forty Aviation Ltd v Tradewinds Aviation Service Ltd [2010] KECA 271 (KLR)", Case Analysis (2010). Civil Application No. Nai. 36 of 2010 (UR.23/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/271/eng@2010-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.