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Court of AppealAllowedCivil Appeal (Application) No. E248 of 2020

Kenya Power & Lighting Company Ltd v George Joseph Kang’ethe & another [2020] KECA 33 (KLR)

Court of Appeal
18 December 2020
RNR. N. NambuyeWKW. KaranjaAMAsike Makhandia
1,714 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya Power won a stay of a Kshs 40 million damages award, but must deposit half the money in a joint account within 30 days.

What this practically means

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Executive summary

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This is a single-judgment ruling of a three-judge bench of the Court of Appeal at Nairobi (Nambuye, Karanja and Asike-Makhandia, JJ.A) on a motion dated 20th August 2020 by Kenya Power & Lighting Company Ltd seeking stay of execution of the judgment of the Environment & Land Court at Kajiado (C. Ochieng', J.) dated 27th July 2020 in ELC Cause No. 797 of 2017, in which the respondents were awarded a total of Kshs. 40,000,000 in compensatory damages for trespass. The application was brought under Rule 5(2)(b) of the Court of Appeal Rules, Orders 42 Rule 6(4) and 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Appellate Jurisdiction Act. The respondents opposed, arguing the intended appeal was frivolous because the applicant had failed to defend the suit, that the land itself was sufficient security, and that the application was a delaying tactic. The Court restated the two-limb Rule 5(2)(b) test: the applicant must show an arguable, non-frivolous appeal and that the appeal would be rendered nugatory absent stay. It found a single arguable ground in the contention that the damages award breached the doctrine of stare decisis, and, applying Reliance Bank v Norlake Investments, held that paying the colossal decretal sum would cause the applicant hardship out of proportion to any prejudice to the respondents, risking rendering the appeal nugatory, particularly given the public nature of the applicant's services. The Court allowed the application, granting stay of execution conditional on the applicant depositing half the decretal sum in a joint interest-earning account within 30 days, with costs to abide the outcome of the intended appeal.

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 and not frivolous
  2. 2.Whether the appeal would be rendered nugatory if stay of execution is not granted

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal was arguable because the contention that the award of compensatory damages breached the doctrine of stare decisis merited consideration at a full hearing.

Reasoning

The Court examined the memorandum of appeal and identified the stare decisis challenge to the damages award as a serious issue. Arguability requires only a serious question of law or a reasonable argument deserving consideration, not that the appeal must succeed. The contestation could only be resolved at a full hearing, and the other grounds raised were not frivolous.

p. 2
02

Whether the appeal would be rendered nugatory if stay is not granted

Holding

Yes - given the colossal decretal sum of Kshs. 40,000,000, payment would cause the applicant hardship out of proportion to any suffering by the respondents and could render the appeal nugatory.

Reasoning

Factors rendering an appeal nugatory are case-specific and require balancing conflicting claims of both sides. The respondents had extracted a decree; the sum was colossal; the applicant apprehended inability to recover it on success, plus financial burden on services of a public nature. Applying Reliance Bank v Norlake, refusal would cause disproportionate hardship. The applicant was also willing to furnish security.

p. 2

Legal principles established

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  • Rule 5(2)(b) jurisdiction is original, independent and discretionary, and must be exercised judiciously and with reason.
  • An arguable ground need not succeed; a single arguable ground suffices.

Court orders

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  1. 1.Stay of execution of the decree issued by the Environment & Land Court at Kajiado in ELC Cause No. 797 of 2017
  2. 2.Condition that the applicant deposits half of the decretal sum in a joint interest earning account in the names of advocates for the parties within 30 days of the ruling
  3. 3.Costs 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.

RN
majority
WK
majority
AM
majority
On appeal from
Environment & Land Court at Kajiado
ELC Cause No. 797 of 2017
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, Orders 42 Rule 6(4) and 51 Rule 1 of the Civil Procedure Rules, and Section 3A of the Appellate Jurisdiction Act

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.

Accordingly, the application dated 20th August, 2020 is allowed. There shall be stay of execution of the decree on condition that the applicant deposits half of the decretal sum in a joint interest earning account in the names of advocates for the parties within 30 days of this ruling. Costs shall abide the outcome of the intended appeal.
p. 2Final orders - stay granted conditional on security
That in dealing with Rule 5(2) (b), the Court exercises original and discretionary jurisdiction and that exercise does not constitute an appeal from the judge’s discretion to this Court.
p. 2Nature of Rule 5(2)(b) jurisdiction
To refuse to grant an order of stay to the applicant would cause to it such hardships as would be out of proportion to any suffering the respondent might undergo while waiting for the applicants appeal to be heard and determined.
p. 2Nugatory test - proportionality of hardship

Issues in the judgment

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minor

The judgment refers to 'Dennis Mogambi Mang'are v Attorney General & 3 others, (supra)' although no earlier reference to that case appears in the ruling.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Power & Lighting Company Ltd v George Joseph Kang’ethe & another [2020] KECA 33 (KLR)", Case Analysis (2020). Civil Appeal (Application) No. E248 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/33/eng@2020-12-18

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