Hellen Makone v Brenda Michieka
The bottom line
#Kenya's Court of Appeal refused to pause a civil suit because the applicant showed neither an arguable appeal nor that the appeal would fail without a stay.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant demonstrated an arguable appeal
The Court was not persuaded the appeal was arguable. The Applicant did not effectively challenge the evidence of service and made no attempt to show what triable issues in her defence the High Court judge failed to consider.
The interlocutory judgment was entered in default of appearance and defence, which was not contested. Although the Applicant claimed she was not served, she did not challenge the evidence of service presented before the High Court - for example by examining the process server on oath or showing she was not where service was alleged. The Court held the High Court judge could not be faulted for ruling the evidence of service unchallenged, and the Applicant pointed to no triable issue overlooked.
Whether the intended appeal would be rendered nugatory absent the orders sought
The nugatory limb was also not satisfied; in any event, failing the arguability limb, satisfaction of the nugatory limb alone would not avail the Applicant.
The Court reiterated that both limbs of the Rule 5(2)(b) test must be demonstrated. Even assuming arguability, nothing was placed before the Court to show the intended appeal would be rendered nugatory if the injunction and stay were refused. The Court was careful not to make final pronouncements on the quality of the intended appeal at the interlocutory stage, but found the requisite threshold unmet.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both limbs - an arguable appeal or intended appeal, and that the appeal will be rendered nugatory if stay or injunction is not granted; satisfying only one limb does not avail the applicant.
- An arguable appeal need not necessarily succeed; it is one that deserves the court's consideration.
- The oxygen principle under Sections 3A and 3B of the Appellate Jurisdiction Act is not a panacea for all ills; a foundation for its application must be properly laid.
Court orders
#- 1.The Notice of Motion filed on 12th January 2012 is dismissed with costs
- On appeal from
- High Court
- HCCS No. 452 of 2011
- Jurisdiction invoked
- Rules 47(1) and 5(2)(b) of the Court of Appeal Rules, and Sections 3A and 3B of the Appellate Jurisdiction Act (as invoked by the applicant)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hellen Makone v Brenda Michieka", Case Analysis (2013). Civil Application No. NAI. 118 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/477/eng@2013-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.