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Court of AppealDismissedCivil Application No. 49 of 2016 (UR 27/2016)

Mohammed Nyongesa Sichangi v Benson N. Opwora [2016] KECA 41 (KLR)

Court of Appeal
16 December 2016
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
931 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to pause a money judgment because the winning party could repay it if the appeal later succeeded.

What this practically means

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Executive summary

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This was an application for stay of execution under the Court of Appeal's rule 5(2)(b) jurisdiction, arising from a ruling of Mukunya, J. in the Environment and Land Court at Bungoma striking out the applicant's suit for abuse of process. The applicant had first filed Tribunal Case No. 34 of 2014 at the Business Premises Rent Tribunal at Kakamega claiming arrears of rent and vacant possession from the respondent as his tenant; the Tribunal instead found the applicant to be the tenant and awarded the respondent Kshs.103,350 in arrears plus Kshs.30,000 costs. The applicant then filed a substantially similar suit in the Environment and Land Court, which was struck out as an abuse of the court process with costs. On appeal, the applicant sought stay of execution, contending the appeal was arguable and would be rendered nugatory. The respondent countered that execution had already partially taken place, that only about Kshs.30,000 had been realized from attachment and sale, and that, earning over one million shillings monthly, he could refund any amounts paid if the appeal succeeded. Although the application cited the wrong legal provisions, the court excused this for the unrepresented applicant under Article 159(2)(d) of the Constitution. Applying the settled twin test from Reliance Bank Ltd v Norlake Investments Ltd, the court found the appeal arguable but held it would not be rendered nugatory because the respondent could repay any sums paid. The application was accordingly dismissed with costs to the respondent.

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 is arguable
  2. 2.Whether the appeal will be rendered nugatory unless stay of execution is granted

Key legal issues

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01

Whether the twin test for stay of execution under rule 5(2)(b) was met

Holding

The appeal was arguable, but the applicant failed to establish that it would be rendered nugatory absent stay, so the application failed.

Reasoning

The court reaffirmed the settled twin requirements: arguability and nugatory-ness, both of which must be satisfied. The arguable limb was met on a review of the tribunal and trial court proceedings. However, execution was for recovery of arrears of rent and costs; the respondent, a businessman earning over one million shillings monthly, had undertaken to refund anything paid, and the applicant did not dispute that ability. Thus the successful appeal could be restored by repayment, and stay was unnecessary.

p. 2
02

Whether the application's defective legal basis (wrong provisions invoked) warranted dismissal

Holding

The court overlooked the procedural impropriety because the applicant was an unrepresented lay person, applying Article 159(2)(d) of the Constitution.

Reasoning

The application was brought under Order 45 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act instead of rule 5(2)(b) of the Court's Rules. Because the applicant was unrepresented, the court exercised its overriding discretion under Article 159(2)(d), treating the application on its merits rather than striking it out for citing the wrong provisions.

p. 1

Legal principles established

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  • On an application for stay of execution under rule 5(2)(b), the applicant must demonstrate both that the appeal or intended appeal is arguable and that it will be rendered nugatory unless stay is granted; both conditions must be satisfied.
  • The ability of a successful respondent to refund monies paid under an execution is relevant to whether an appeal would be rendered nugatory.

Court orders

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  1. 1.The application for stay of execution is dismissed with costs to the respondent

The bench

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

DM
majority

Wrote the judgment

SK
majority

Wrote the judgment

AM
majority

Wrote the judgment

On appeal from
High Court of Kenya at Bungoma (Environment & Land Court)
Environment & Land Case No. 63 of 2015
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application brought under Order 45 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act; court proceeded under Article 159(2)(d) of the Constitution)

Relief refused

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Stay of execution of the High Court order striking out the applicant's suit and awarding costs

The appeal was found arguable but the nugatory limb failed; the respondent demonstrated financial ability to refund any amounts paid if the appeal succeeded

p. 2

Costs

The application for stay of execution is dismissed with costs 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.

An applicant has to demonstrate that the appeal or intended appeal is arguable and that unless stay of execution is granted the appeal will be rendered nugatory. The two conditions must be met.
p. 2Twin test for stay of execution pending appeal
The applicant is an unrepresented lay person. We shall overlook that procedural impropriety in the spirit of Article 159 (2) (d) of the Constitution.
p. 1Procedural impropriety by a lay litigant excused under Article 159(2)(d)
In the circumstances, the orders sought cannot be granted. Consequently, the application for stay of execution is dismissed with costs to the respondent. It is so ordered.
p. 2Final orders dismissing the stay application

Issues in the judgment

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minor

Internal inconsistency in dates: the application is described as arising from a ruling delivered on 12th November 2013 in the heading, while the body states the ruling was made on 12th November 2015; the suit itself is E&L Case No. 63 of 2015.

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, "Mohammed Nyongesa Sichangi v Benson N. Opwora [2016] KECA 41 (KLR)", Case Analysis (2016). Civil Application No. 49 of 2016 (UR 27/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/41/eng@2016-12-16

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