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Court of AppealAllowedCivil Application Number 92 of 2017

Kenya Wildlife Service v Lake Jipe Safari Lodge Limited

Court of Appeal
19 January 2018
2,099 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal paused a Kshs. 23.1 million judgment against Kenya Wildlife Service because the winning lodge likely couldn't repay the money if the appeal succeeded.

What this practically means

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Executive summary

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Kenya Wildlife Service applied under Rule 5(2)(b) of the Court of Appeal Rules for a stay of execution of a High Court judgment awarding Lake Jipe Safari Lodge Limited Kshs. 23,100,000.00 for lost or stolen property following the Service's 2000 re-entry of leased premises in Tsavo West National Park. The High Court had held the Service lawfully terminated the lease and re-took possession, but found it liable for loss of the respondent's movables due to negligence, awarding Kshs. 23,100,000.00 on equitable principles under Article 10(2)(b) of the Constitution despite acknowledging the claim could not be verified; the Service's counterclaim was dismissed. The Service argued its intended appeal was arguable - complaining that special damages were unproved, that equity was wrongly substituted for established law, and that negligence was neither pleaded nor proved - and that the respondent, no longer trading, could not refund the decretal amount. The respondent contended the appeal was not arguable and that a monetary decree can be refunded. Applying the settled two-limb test, the Court found the complaints not frivolous and thus an arguable appeal established. On the nugatory limb, it held the respondent had not controverted the assertion that it lacked means to repay by showing its resources. The application was granted in terms of prayer 3, staying execution pending the intended appeal, with costs of the application to abide the appeal's outcome.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has an arguable appeal
  2. 2.Whether the intended appeal will be rendered nugatory unless a stay of execution is granted

Key legal issues

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01

Whether the applicant demonstrated an arguable appeal

Holding

Yes - the complaints that special damages were awarded on equitable principles without proof, and that liability was founded on unpleaded negligence, were not frivolous.

Reasoning

The Court found the applicant's complaints - that the High Court awarded special damages based on equity with no proof, and founded liability on negligence neither pleaded nor proved - raised arguable issues whose answers must await the full hearing of the intended appeal.

p. 4
02

Whether the appeal would be rendered nugatory if stay was refused

Holding

Yes - the respondent did not demonstrate means to refund the decretal amount, so execution could render a successful appeal nugatory.

Reasoning

The applicant asserted the respondent lacked means to refund the judgment amount. The respondent merely stated it was an established entity without showing its resources. Relying on established authority, the Court treated the assertion as uncontroverted and found the nugatory limb satisfied.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal will be rendered nugatory unless stay or injunction is granted.
  • An arguable appeal need not be one that must succeed; it is one that ought to be argued fully before the Court.
  • Where an applicant asserts that a respondent lacks means to refund a judgment amount, the respondent must controvert that assertion by showing what resources it has.

Court orders

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  1. 1.Stay of execution of the judgment of the High Court dated 12th October 2016 and delivered on 17th October 2016 in Nairobi HCCC No. 92 of 2006 pending the hearing and determination of the intended appeal
  2. 2.Costs of the application to abide the outcome of the intended appeal

The bench

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

majority
majority
majority
On appeal from
High Court at Nairobi
H.C.C.C. No. 92 of 2006
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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.

The jurisdiction of the court under rule 5(2)(b) is not only original but also discretionary. Two principles guide the court in the exercise of that jurisdiction.
p. 3Rule 5(2)(b) jurisdiction and guiding principles
For now, we do not think these complaints are frivolous. We think the applicant has demonstrated an arguable appeal.
p. 4Arguable appeal standard
In the foregoing circumstances, there is merit in the applicant’s application. The application dated 25 th April 2017 is granted in terms of prayer 3 thereof.
p. 4Disposition - application granted
There will be a stay of execution of the judgment of the High Court dated 12th October 2016 and delivered on 17th October 2016 in Nairobi HCCC No. 92 of 2006 pending the hearing and determination of the intended appeal.
p. 4Final orders - stay of execution granted

Issues in the judgment

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minor

Inconsistent judgment dates: body says judgment dated 12th October 2016, heading says 17th October 2016.

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, "Kenya Wildlife Service v Lake Jipe Safari Lodge Limited", Case Analysis (2018). Civil Application Number 92 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/880/eng@2018-01-19

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