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Case Brief · caselaw.co.ke
Court of AppealAllowedNot stated in the judgment· [2024] KECA 344 (KLR)

Nation Media Group Limited v Lucy M Kambuni

Court of Appeal
15 March 2024
1,257 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal paused a Kshs.12 million libel judgment against Nation Media Group until its appeal is heard.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal, Nairobi, on an application by Nation Media Group Limited under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution of a High Court libel judgment delivered on 28th May 2020. The High Court had found that articles published by the applicant in the East African and the Daily Nation in 2006 and 2007 concerning the respondent's appointment, with five other lawyers, to represent the Government of Kenya in constitutional review and referendum litigation, were reckless, malicious and defamatory, and awarded her Kshs.10,000,000 in general damages and Kshs.2,000,000 in exemplary damages, with a public apology. The suit was a test suit for five similar cases brought by other advocates. The applicant argued the appeal was arguable on malice, reputational harm and the assessment of damages, and that execution was imminent, the bill of costs having been taxed. The respondent conceded arguability but contended the appeal would not be rendered nugatory and that a successful litigant should not be deprived of the fruits of judgment without just cause. Applying the settled two-limb Rule 5(2)(b) test from Reliance Bank vs Norlake Investments and Peter Paul Mburu Ndururi, the court held the appeal arguable and, balancing the competing interests, found the appeal would be rendered nugatory without a stay, given the real likelihood of execution in a test suit. The application dated 20th May 2022 was allowed, with costs to abide the outcome of the appeal.

Key legal issues

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01

Test for stay of execution pending appeal under Rule 5(2)(b)

Holding

The applicant must demonstrate an arguable appeal and that the appeal will be rendered nugatory if stay is not granted; both principles must be satisfied.

Reasoning

The court restated the established Rule 5(2)(b) test, citing Reliance Bank Ltd (in liquidation) vs Norlake Investments Ltd and Peter Paul Mburu Ndururi vs James Macharia Njore. Arguability requires only that the appeal is not frivolous; nugatory-ness requires balancing the competing interests of the parties, including that a successful litigant should not be deprived of the fruits of judgment without just cause.

p. 2
02

Arguability of the intended appeal

Holding

The questions of malice, whether the publications lowered the respondent's esteem, and the availability of fair comment are arguable and warrant the Court's consideration.

Reasoning

The court deliberately refrained from making determinations that would prejudice the hearing of the intended appeal, holding only that the issues of malice, reputational harm, and fair comment on matters of public interest merit full consideration at the hearing of the appeal.

p. 3
03

Nugatory aspect and balancing of interests

Holding

The intended appeal would be rendered nugatory if stay is not granted, given the imminent execution and the fact that the suit was a test suit for five similar cases.

Reasoning

Weighing the applicant's apprehension of imminent execution (the bill of costs had been taxed and an execution hearing was scheduled) against the respondent's entitlement to the fruits of judgment, the court found the balance tipped in favour of stay because execution against the applicant in a test suit would operate to the detriment of five similar pending cases.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both limbs: an arguable appeal and that the appeal will be rendered nugatory if stay is not granted; satisfying only one is insufficient.

Court orders

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  1. 1.Stay of execution of the High Court judgment of 28th May 2020 (the decretal sum of Kshs.10,000,000 general damages and Kshs.2,000,000 exemplary damages) pending the intended appeal
  2. 2.The applicant's application dated 20th May, 2022 allowed
  3. 3.Costs to abide by the outcome of the appeal
On appeal from
High Court
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nation Media Group Limited v Lucy M Kambuni", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/344/eng@2024-03-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.