Humming Healthcare Limited v Asterisk Limited (Civil Appeal (Application) E586 of 2022) [2023] KECA 168 (KLR)
The bottom line
#The Court of Appeal refused to stop execution of a Kshs 17.3 million judgment against four directors personally because they filed no draft grounds of appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether service of the notice of appeal on the respondent was made within the prescribed timelines, and whether that issue can be raised on a stay application
- 2.Whether the intended appeal is arguable
- 3.Whether the appeal, if successful, would be rendered nugatory if stay is not granted
Key legal issues
#Whether the intended appeal is arguable
The limb was not established because the motion and supporting affidavit did not disclose the grounds of appeal and no draft memorandum of appeal was attached.
The court perused the motion and supporting affidavit and could not glean the grounds said to render the appeal arguable. It held that an arguable appeal need not be one that will necessarily succeed, but must not be frivolous; absent a draft memorandum of appeal or discernible grounds, the applicant's general assertion of arguability could not stand.
Whether the appeal would be rendered nugatory if stay is not granted
The nugatory limb failed: this is a monetary decree and any loss to the applicant if execution proceeds and the appeal later succeeds can be compensated by damages.
Applying Stanley Kangethe Kinyanjui v Tony Ketter, the test is whether what is sought to be stayed is reversible or, if not, whether damages will reasonably compensate the aggrieved party. The decree here was monetary (approximately Kshs 17,295,668 against the directors personally), and the court was not satisfied that execution would render a successful appeal nugatory, since damages could compensate any loss.
Whether late service of the notice of appeal defeats a stay application
Nothing turns on the alleged late service; a party seeking striking out of a notice of appeal must bring a separate application under rules 79 and 86 of the Court of Appeal Rules.
The court framed the issue as whether service was within the prescribed timelines, but noted that what was before it was a stay application, not an application to strike out the notice of appeal. A respondent objecting to late service must move the court by a separate application under the appropriate rules; therefore the objection could not be determined on this motion.
Legal principles established
#- An applicant for stay under rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal, if successful, would be rendered nugatory; both limbs must be satisfied.
- A complaint about late service of a notice of appeal cannot be determined on a stay application; a party seeking striking out of the notice must bring a separate application under rules 79 and 86 of the Court of Appeal Rules.
- An applicant asserting an arguable appeal should attach a draft memorandum of appeal; general assertions of arguability without grounds will fail.
Court orders
#- 1.The notice of motion dated August 29, 2022 is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Civil Suit No. 107 of 2014 (ruling of Mabeya, J delivered July 28, 2022)
- Jurisdiction invoked
- Articles 159 of the Constitution of Kenya, 2010; sections 3, 3A and 3B of the Appellate Jurisdiction Act; rules 5(2)(b), 42 and 47 of the Court of Appeal Rules, 2010
Relief refused
#Stay of execution of the orders arising from the ruling of Mabeya, J delivered July 28, 2022 pending the hearing and determination of the intended appeal
The applicant failed to establish both limbs for stay under rule 5(2)(b): no arguable appeal demonstrated (no draft memorandum of appeal) and no demonstration that the appeal would be rendered nugatory since monetary loss is compensable by damages
Costs
The notice of motion dated August 29, 2022 is dismissed with costs to the respondent.
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 purpose of an application such as this is to preserve the subject matter in dispute so that the rights of an applicant who is exercising his or her undoubted right to appeal are safeguarded and the appeal, if successful, is not rendered nugatory.
However, it does not mean that the appeal must be one which will necessarily succeed, but one which is not frivolous.
whether or not an appeal will be rendered nugatory depends on whether what is sought to be stayed, if allowed to happen, is reversible; or if it is not reversible, whether damages will reasonably compensate the party aggrieved.
In view of the foregoing, and noting that the applicant has not satisfied the two limbs for grant of orders of stay under rule 5 (2)(b), the notice of motion dated August 29, 2022 fails and is hereby dismissed with costs to the respondent.
Issues in the judgment
#Internal date inconsistency: the applicant's application dated August 29, 2022 is described as seeking stay of a ruling delivered July 28, 2022 which 'allowed the applicant's application dated September 17, 2022' - a date after both the impugned ruling and the application itself.
The applicant's application is said to seek stay of the ruling of July 28, 2022, but the applicant is elsewhere described as aggrieved by two rulings including that of July 1, 2021, which it fears will crystallize execution.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mini Bakeries (Nairobi) Limited v Ramadhan (Appeal E074 of 2024) [2025] KEELRC 578 (KLR)[2025] KEELRC 578 (KLR)27 Feb 2025applied
Cite this brief
#Cite this brief
Caselaw, "Humming Healthcare Limited v Asterisk Limited (Civil Appeal (Application) E586 of 2022) [2023] KECA 168 (KLR)", Case Analysis (2023). Application dated August 29, 2022 (Civil Suit No. 107 of 2014 appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/168/eng@2023-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.