V.Chokaa v Local Authorities Provident Fund (Lapfund) [2020] KECA 139 (KLR)
The bottom line
#Kenya's Court of Appeal paused collection of a Kshs. 54.8 million debt against an advocate, finding his appeal had merit and money might vanish first.
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 intended appeal is arguable
- 2.Whether the appeal will be rendered nugatory unless a stay of execution is granted
Key legal issues
#Test for grant of stay under Rule 5(2)(b) of the Court of Appeal Rules
The applicant must satisfy the twin principles of arguability and nugatory-ness; both were satisfied on the facts.
The court restated the settled two-pronged test from Ishmael Kagunyi Thande v Housing Finance of Kenya Ltd. On arguability, the draft memorandum raised five grounds including improper determination of an application, interference with taxation without showing error by the taxing master, and a hearing denial. On nugatory-ness, the funds held under garnishee proceedings risked withdrawal, defeating execution if the appeal later succeeded. Both limbs having been met, stay was granted.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that the appeal will be rendered nugatory if the orders sought are not granted.
Court orders
#- 1.Stay of execution of the orders issued by the High Court at Kisii (Ougo, J) on 11th March 2020 granted as prayed
- 2.Costs shall be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- Misc. Civil Application No. 36 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act
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.
For an applicant to succeed he must not only show his appeal or intended appeal is arguable, but also that unless the court grants him an injunction or stay as the case may be, the success of the appeal will be rendered nugatory.
All these are arguable issues and therefore the applicant has satisfied the first principle of arguability.
We are therefore satisfied that the applicant has satisfied the requirements of Rule 5(2)(b) of the Court Rules. Accordingly, we allow his application and grant the orders as prayed. Costs shall be in the appeal
Issues in the judgment
#The coram states the court is at Kisumu, but the ruling is dated and delivered at Nairobi.
The respondent asserted the High Court ruled it had no jurisdiction and transferred the matter to the ELRC, yet the court describes the High Court orders as setting aside judgment and certificate of taxation; the scope of the orders under appeal is not fully reconciled.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "V.Chokaa v Local Authorities Provident Fund (Lapfund) [2020] KECA 139 (KLR)", Case Analysis (2020). Civil Application No. 46 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/139/eng@2020-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.