Watunu & another v Wamutoro & another (Suing as the Legal Representatives of the Estate of Khakoni Damary Lumbasi) (Civil Application E030 of 2023) [2024] KECA 58 (KLR)
The bottom line
#The Court of Appeal refused to pause a Kshs 14 million judgment because the applicants never showed their intended appeal had any real merit.
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 applicants satisfied the twin principles under Rule 5(2)(b) of the Court of Appeal Rules for the grant of a stay of execution pending appeal, namely an arguable appeal and whether the appeal would be rendered nugatory absent a stay
Key legal issues
#Whether the applicants demonstrated an arguable appeal under Rule 5(2)(b)
The Court found no averment showing why the intended appeal was arguable; no draft memorandum of appeal was annexed and counsel could not point out a single arguable point when probed.
The Court applied the principles in Stanley Kangethe Kinyanjui v Tony Ketter & Others, requiring an applicant to satisfy both limbs. It found no single averment as to why the intended appeal was arguable, no draft memorandum of appeal annexed, and no arguable point identified even after probing by the Court during plenary hearing. A bare assertion that the decretal amount was enormous could not substitute for a laid basis.
Whether Order 42 Rule 6(2) of the Civil Procedure Rules applies to stay applications in the Court of Appeal
It does not; Order 42 applies only to appeals before the High Court, and both parties had broadly misinterpreted the law in invoking it.
Both parties' submissions invoked Order 42 Rule 6(2) of the Civil Procedure Rules 2010. The Court held this was a misinterpretation, since those provisions govern appeals before the High Court only. Stay applications in the Court of Appeal are governed by Rule 5(2)(b) of the Court of Appeal Rules and the twin principles of arguability and nugatory-ness.
Whether the intended appeal would be rendered nugatory absent a stay
Having failed on the first limb (arguability), it was superfluous to consider the second limb.
The Court reiterated that an applicant must satisfy the Court on both twin principles. Since the applicants failed entirely to demonstrate an arguable appeal, the Court declined to make findings on whether the appeal would be rendered nugatory, treating that inquiry as superfluous. It also noted the record did not show whether execution had already taken place.
Legal principles established
#- An applicant under Rule 5(2)(b) of the Court of Appeal Rules must satisfy the Court on both twin principles: that the appeal is arguable and that it would be rendered nugatory absent stay.
- Order 42 of the Civil Procedure Rules 2010 does not apply to appeals in the Court of Appeal; it applies only to appeals before the High Court.
- A general assertion that the decretal amount is enormous is not, without more, an arguable ground of appeal.
Court orders
#- 1.Dismissal in its entirety of the applicants' motion dated 23rd June 2023 seeking a temporary stay of execution of the decree and judgment in Eldoret HCCA No. 38B of 2020
- 2.Costs of the application to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Eldoret HCCA No. 38B of 2020
- Jurisdiction invoked
- Rules 1(2), 5(2)(b) and 42 of the Court of Appeal Rules
Relief refused
#Temporary stay of execution of the decree and judgment in Eldoret HCCA No. 38B of 2020 pending the hearing and determination of the intended appeal
The applicants failed to demonstrate an arguable appeal and did not annex a draft memorandum of appeal; having failed on the first limb, the nugatory limb need not be considered
Costs
The motion was dismissed with costs to the respondents.
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.
An applicant must satisfy the Court on both the twin principles.
the provisions of Order 42 of the Civil Procedure Rules 2010 are not applicable to appeals before this Court and are only applicable to appeals before the High Court
A mere general assertion that the decretal amount is an enormous amount cannot in itself be said to be an arguable ground of appeal without laying a basis for the same.
we find no merits in the applicants’ motion dated 23rd June 2023, which motion we hereby dismiss in its entirety with costs to the respondents
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Watunu & another v Wamutoro & another (Suing as the Legal Representatives of the Estate of Khakoni Damary Lumbasi) (Civil Application E030 of 2023) [2024] KECA 58 (KLR)", Case Analysis (2024). Application dated 23rd June 2023 (Civil Appeal, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/58/eng@2024-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.