Kenya Wildlife Service v Lake Jipe Safari Lodge Limited
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has an arguable appeal
- 2.Whether the intended appeal will be rendered nugatory unless a stay of execution is granted
Key legal issues
#Whether the applicant demonstrated an arguable appeal
Yes - the complaints that special damages were awarded on equitable principles without proof, and that liability was founded on unpleaded negligence, were not frivolous.
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.
Whether the appeal would be rendered nugatory if stay was refused
Yes - the respondent did not demonstrate means to refund the decretal amount, so execution could render a successful appeal nugatory.
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.
Legal principles established
#- 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
#- 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.Costs of the application to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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.
For now, we do not think these complaints are frivolous. We think the applicant has demonstrated an arguable appeal.
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.
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.
Issues in the judgment
#Inconsistent judgment dates: body says judgment dated 12th October 2016, heading says 17th October 2016.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.