Joseph Muiruri Githongo v Mohamed Muin Ahmad Malik [2011] KECA 311 (KLR)
The bottom line
#Kenya's Court of Appeal halted a High Court case because the appeal had real merit and any judgment might be impossible to recover.
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 (not frivolous)
- 2.Whether, were the intended appeal to succeed, its results would be rendered nugatory unless a stay of proceedings is granted
Key legal issues
#Whether the intended appeal against the striking out of the applicant's entire defence was arguable
The intended appeal was arguable; the respondent's counsel conceded this and the Court agreed that whether the entire defence should have been struck out, when earlier orders allowed issues of interest to go to trial, was an arguable point.
Lesiit J. had struck out the entire defence, yet Warsame J.'s earlier ruling had directed payment of Kshs.17 million while expressly leaving the issue of interest and other issues for full trial. Striking out a defence that raised issues another judge had allowed to proceed to trial raised a bona fide question. The respondent's own counsel conceded arguability and even said the judge made a mistake, so the Court saw no need to examine the first principle further.
Whether the results of the intended appeal would be rendered nugatory if stay of proceedings were refused
The nugatory principle was satisfied: if the suit proceeded to formal proof, the respondent could obtain and execute an interest award exceeding Kshs.7,500,000, and being an agent for a disclosed, non-party principal, could pay the money over, making recovery difficult.
The Court observed that on refusal of the application the respondent would set the suit down for formal proof and might obtain orders for interest at his claimed rates and execute for over Kshs.7,500,000. Since the respondent acted for a disclosed principal who was not a party, any money paid could be transferred to the principal, and the applicant would face difficulty accessing it, possibly requiring further proceedings. The balance of Kshs.17 million had already been paid, leaving mainly interest in dispute.
Legal principles established
#- An application under rule 5(2)(b) of the Court of Appeal Rules succeeds only where the applicant demonstrates that the intended appeal is arguable and that its results would be rendered nugatory if the application is refused.
- Where a suit proceeds against an agent for a disclosed principal who is not a party, money paid to the agent may be difficult to recover from the principal, which can render the results of an intended appeal nugatory.
Court orders
#- 1.Stay of proceedings before the superior court in Civil Case No. 285 of 2003 pending the final hearing and determination of the applicant's intended appeal against the decision of the High Court at Nairobi given on 20th March 2009
- 2.Costs of the application to be in the intended 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.C.C. No. 285 of 2003
- 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.
Thus in our view, the two principles on which the Court is to be satisfied on before an application brought under rule 5 (2) (b) of this Court’s Rules, is granted, namely that the appeal already filed or intended to be filed is arguable, that is that it is not frivolous, and that the results of the appeal or intended appeal were it to succeed would be rendered nugatory by our refusal of the application have been satisfied
The application succeeds. The proceeding before the superior court in Civil Case No. 285 of 2003 are hereby stayed pending the final hearing and determination of the applicant’s intended appeal against the decision of the High Court at Nairobi given on 20th March, 2009. Costs of this application shall be in the intended appeal.
As the respondent is acting on behalf of a disclosed principal who is not a party, that money may be paid over to the principal and it may not be easy for the applicant to access it as to do so may very well mean taking other steps in the entire matter.
Issues in the judgment
#Internal date inconsistency: Lesiit J's ruling is first described as delivered on 20th March 2005 and later as 20th March 2009, while the notice of appeal was filed on 27th March 2009.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Muiruri Githongo v Mohamed Muin Ahmad Malik [2011] KECA 311 (KLR)", Case Analysis (2011). Civil Application No. Nai. 121 of 2009 (UR.77/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/311/eng@2011-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.