Titus Barasa Makhanu v Evans K Cheruiyot & 1 other
The bottom line
#The Court of Appeal refused to halt a High Court case, ruling the intended appeal had no arguable grounds and would not be harmed if proceedings continued.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal against the amendment of pleadings
The applicant failed the arguability limb
The learned judge considered whether the amendment was necessary for the determination of the real issues and found it introduced no new cause of action. On the red-ink requirement, she noted that on the e-platform the colour that appears is black. Taking the amendment principles into account, the Court saw no arguable ground, while saying no more to avoid embarrassing the bench seized of the main appeal.
Whether the intended appeal would be rendered nugatory absent stay
It would not
The Court reasoned that the intended appeal concerns an interlocutory ruling on amendment, and if the trial court ultimately finds against the applicant, he retains a right of appeal against that outcome. The proceedings continuing therefore do not render the appeal nugatory, and the nugatory limb failed as well.
Legal principles established
#- An applicant under rule 5(2)(b) must establish both arguability of the intended appeal and that the appeal will be rendered nugatory absent stay
- An interlocutory appeal such as this is not rendered nugatory where the applicant retains a right of appeal on the outcome of the trial court's decision
Court orders
#- 1.Dismissal of the notice of motion dated October 5, 2022
- 2.Costs to the respondents
- On appeal from
- High Court
- Nairobi HCACE Pet No 3 of 2022
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Titus Barasa Makhanu v Evans K Cheruiyot & 1 other", Case Analysis (2023). Rule 5(2)(b) application in intended appeal (as stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/328/eng@2023-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.