Alfred Mincha Ndubi v The Standard Limited
The bottom line
#The Court of Appeal refused to freeze a Kshs 4 million defamation payout because money that can be refunded is not at risk of being lost forever.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The intended appeal was arguable because it raised non-frivolous points, including whether the tort of defamation was proved to the required standard.
The court perused the draft memorandum of appeal and found the grounds - that the learned Judge erred in finding the elements of defamation unproved and in assessing evidence from the criminal acquittal - raised arguable points. The court stressed it could not go into the merits at this stage; a single arguable ground suffices and an arguable appeal need not succeed, only merit consideration.
Whether the intended appeal would be rendered nugatory if the injunction was not granted
The appeal would not be rendered nugatory because, if the applicant refunded the monies paid and his appeal eventually succeeded, he would be refunded any monies due, and there was no assertion that the respondent was incapable of making such refund.
Applying Reliance Bank v Norlake, nugatory factors are considered case by case weighing the conflicting claims of both sides. The applicant feared loss of property and civil jail, but the court found that if he refunded the monies and the appeal succeeded, he would be repaid; the respondent, which had previously paid the decree without difficulty, was not shown incapable of refunding. Hardship was thus not weighted in the applicant's favour.
Legal principles established
#- An application under Rule 5(2)(b) requires the applicant to establish both limbs - that the appeal is arguable and that it will be rendered nugatory if the order is not granted; failure on either limb is fatal.
- 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.
Court orders
#- 1.The notice of motion dated 8th July 2019 is dismissed with costs to the respondent
- On appeal from
- High Court of Kenya at Nyamira
- H.C.C.A. No. 5 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, derived from Article 164(3) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alfred Mincha Ndubi v The Standard Limited", Case Analysis (2020). Civil Application No. 74 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/795/eng@2020-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.