Vaghjiyani Enterprises Ltd v Osundwa & Company Advocate (Civil Application E234 of 2023) [2024] KECA 81 (KLR)
The bottom line
#Kenya's Court of Appeal stopped execution of a Kshs 4.5 million advocate-fee award because a single arguable appeal point is enough to win a stay.
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 intended appeal is arguable
- 2.Whether, if the orders sought are not granted, the intended appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal raises arguable issues
The court found triable issues in whether the bill of costs was pegged on an erroneous figure and whether the applicant met the Order 42 threshold for stay of execution.
The court, taking care not to prejudice the hearing of the intended appeal, identified two issues it considered triable: whether the judge erred in failing to find the bill of costs was pegged on an erroneous figure, and whether the applicant had met the Order 42 Civil Procedure Rules threshold for stay of execution. Relying on the settled principle that one bona fide arguable point suffices and need not ultimately succeed, the threshold was satisfied.
Whether the appeal would be rendered nugatory if stay is not granted
Because the final amount payable remains unsettled pending the appeal on the reference, execution now would render the appeal futile.
The court held that nugatoriness must be assessed in the circumstances of each case, and the respondent's ability to refund is not the only factor. Here leave to appeal against the dismissal of the reference was granted, an appeal is pending, and the amount ultimately owed will only be ascertained on appeal. Allowing execution before that determination would render the appeal futile, so the nugatory limb was satisfied.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate an arguable appeal and that the appeal will be rendered nugatory if stay is not granted.
- A single arguable issue suffices for a Rule 5(2)(b) application and it need not succeed on appeal.
- The nugatory inquiry is fact-specific and the respondent's financial capability to refund the decretal sum is not the sole determining factor.
Court orders
#- 1.Stay of the High Court ruling dismissing the applicant's application for conservatory orders pending appeal, granted in the applicant's favour
- 2.Costs to abide by the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
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.
Firstly that the applicant must demonstrate that they have an arguable appeal or an appeal that is not frivolous, and secondly, that if the orders sought are not granted, the intended appeal will be rendered nugatory, if it eventually succeeds.
The rule is that one arguable issue is suficient and the issue does not need to succeed on appeal.
we do not think that the financial capability of the respondent to refund the decretal sum in the event the appeal is successful is the only determining factor of whether an appeal will be rendered nugatory.
Accordingly the application is allowed. Costs to abide by the outcome of the appeal.
Issues in the judgment
#Internal inconsistency in the date of the ruling dismissing the reference: stated as 5th May 2022 earlier and 5th May 2023 later.
The impugned High Court decision is described both as a ruling of 24th November 2022 and as an application dated 25th January 2023, making the chronology of the decision under review unclear.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Vaghjiyani Enterprises Ltd v Osundwa & Company Advocate (Civil Application E234 of 2023) [2024] KECA 81 (KLR)", Case Analysis (2024). Notice of motion dated 2nd June 2023 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/81/eng@2024-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.