County Government of Trans Nzoia v Hersi & 3 others (Civil Application E104 of 2021) [2022] KECA 114 (KLR)
The bottom line
#Kenya's Court of Appeal paused execution of a Kshs. 33 million judgment against Trans Nzoia County, but only if it secures a Kshs. 10 million bank guarantee within 30 days.
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 appeal would be rendered nugatory if stay of execution is not granted
Key legal issues
#Whether the applicant met the Rule 5(2)(b) threshold of an arguable appeal and nugatory prejudice
The court found the grounds arguable and held that refusal of relief would render the appeal nugatory, warranting a conditional stay secured by a bank guarantee
Applying the settled two-limb test from Kinyanjui v Ketter, the court concluded the grounds raised on the intended appeal were arguable, and that without relief the appeal would be nugatory. Balancing the parties' interests, given the sum involved and the risk of foreclosure to the 2nd respondent, the court conditioned the stay on provision of a Kshs. 10,000,000 bank guarantee within 30 days.
Legal principles established
#- An applicant for relief under Rule 5(2)(b) must show both an arguable appeal and that the appeal would be rendered nugatory if the orders sought (stay or injunction) are not granted
Court orders
#- 1.Stay of proceedings/execution granted on condition that the applicant provides a bank guarantee for Kshs. 10,000,000 with the 3rd respondent (Eco Bank Kenya Limited) within 30 days, failing which the interim order shall lapse
- 2.If the condition is complied with, the stay shall extend to the hearing and determination of the appeal
- 3.Costs of the motion to be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- HCCC 6 of 2019 at Bungoma
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, founded on a filed notice of appeal
Relief refused
#Unconditional stay of execution pending appeal
The court granted only a conditional stay, given the sums involved and the risk of foreclosure facing the 2nd respondent
Costs
The costs of the motion shall be in the intended appeal
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 principles upon which this Court grants relief under Rule 5(2)(b) of its Rules are well settled that; an applicant must show that he has an arguable appeal and that if the orders sought, be they of stay of execution or injunction are not granted, the said appeal would be rendered nugatory
We hereby grant the stay of proceedings as sought on condition that the applicant provides a bank guarantee for Kshs. 10,000,000 with the 3rd respondent within 30 days failing which, the interim order shall lapse
If the order is complied with, the stay shall extend to the hearing and determination of the appeal.
Issues in the judgment
#The motion sought a stay of execution, but the operative order grants a stay of proceedings; the two remedies are distinct
The applicant is referred to as 'the appellant' in the opening paragraph but as 'the applicant' throughout, reflecting the interlocutory stage
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Government of Trans Nzoia v Hersi & 3 others (Civil Application E104 of 2021) [2022] KECA 114 (KLR)", Case Analysis (2022). Motion dated 8th July 2021 (intended appeal from HCCC 6 of 2019, Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/114/eng@2022-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.