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Court of AppealDismissedRule 5(2)(b) Application in intended appeal from Nairobi HC JR No. 282 of 2014

Charles Kerich, County Executive Committee (Member) for Finance and Economic Planning & another v Park Towers Limited (Civil Application E138 of 2024) [2024] KECA 1398 (KLR)

Court of Appeal
11 October 2024
1,172 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to pause a Kshs 43.7 million judgment because the company seeking a delay had never actually appealed the decision itself.

What this practically means

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Executive summary

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By a Notice of Motion dated 21st March 2024 under sections 3 and 3A of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules, the applicants sought a temporary stay of proceedings in Nairobi HC JR No. 282 of 2014 pending an intended appeal against a ruling of the High Court (Chigiti, J.) dated 12th February 2024. That ruling set aside orders of 25th September 2023, which had issued a warrant of arrest against the 1st applicant for failing to pay an outstanding decretal sum of Kshs 43,737,390.22 on behalf of the 2nd applicant, on condition that the 2nd applicant deposit the decretal sum within 45 days. The applicants complained of lack of personal service, alleged distortion of facts, the unenforceability of the decree against them, and inability to meet the conditions. The respondent opposed, citing material non-disclosure, contempt of 2017 consent orders, part payment of Kshs 10 million, and proper service. The court restated the settled conjunctive twin limbs of the rule 5(2)(b) test: an arguable appeal and nugatory effect absent stay. It found the grounds doubtful as to arguability, noting the applicants had never appealed the judgment under execution and were effectively seeking more time to settle a monetary decree. Having failed the first limb, the second limb did not arise, particularly as no argument was made that the respondent could not refund the decretal sum. The application was dismissed with costs to the respondent. This decision binds subordinate courts and the High Court on the rule 5(2)(b) threshold as restated.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable and not merely frivolous
  2. 2.Whether the intended appeal, if successful, would be rendered nugatory absent a stay of proceedings

Key legal issues

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01

Whether the intended appeal met the arguability limb of the rule 5(2)(b) test

Holding

The applicants failed the arguability limb: they did not appeal against the underlying judgment and were essentially seeking more time to settle a monetary decree, part of which they had already paid

Reasoning

The draft memorandum raised four grounds concerning representation, ability to pay and the 1st applicant's role in payment. However, the court noted the applicants had not appealed the judgment under execution and had paid Kshs 10 million in part payment. The court held that on these circumstances the grounds were doubtful as to arguability, and a court should candidly flag frivolous grounds without determining their merits.

p. 3
02

Whether the second (nugatory) limb needed consideration

Holding

Having failed the first limb, the second limb did not arise; in any event the decree was monetary and no argument was made that the respondent could not refund

Reasoning

The twin limbs of rule 5(2)(b) are conjunctive, so failure on arguability is fatal without considering nugatory effect. The court further observed that the decretal sum was monetary and the applicants did not contend that the respondent would be unable to refund it if the intended appeal ultimately succeeded, undermining any claim of nugatory effect.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate conjunctively that the intended appeal is arguable and not frivolous, and that it would be rendered nugatory absent stay
  • A single bona fide arguable ground suffices to establish that an appeal is not frivolous
  • Where the grounds of appeal appear frivolous, the Court should say so without going into the merits

Court orders

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  1. 1.The application for temporary stay of proceedings pending intended appeal is dismissed
  2. 2.Costs of the application to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya
Nairobi HC JR No. 282 of 2014; Republic v. Nairobi City County Government ex-parte Part Towers Limited
Jurisdiction invoked
Sections 3 and 3A of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Temporary stay of proceedings in Nairobi HC JR No. 282 of 2014 pending the hearing and determination of an intended appeal

The applicants failed to satisfy the first limb of the rule 5(2)(b) test: the grounds of appeal were doubtful as to arguability; the second limb need not be considered

p. 3

Costs

The application was dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

To be successful, an applicant must demonstrate the following conjunctive twin limbs; firstly, that the intended appeal or appeal (if any) is arguable and not merely frivolous. Secondly, that the appeal, or intended appeal, if successful, would be rendered nugatory absent stay.
p. 2Rule 5(2)(b) threshold
In our view, where the grounds of appeal appear frivolous, the Court should not hesitate to say so without going into the merits as that is an issue for the bench that will hear and determine the appeal.
p. 3Scope of inquiry on arguability
Accordingly, we find that the application lacks merit. It is hereby dismissed with costs to the respondent.
p. 3Final orders and costs

Issues in the judgment

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minor

The application is described inconsistently as a stay of proceedings in the opening paragraph but as a stay of execution in the disposition paragraphs

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, "Charles Kerich, County Executive Committee (Member) for Finance and Economic Planning & another v Park Towers Limited (Civil Application E138 of 2024) [2024] KECA 1398 (KLR)", Case Analysis (2024). Rule 5(2)(b) Application in intended appeal from Nairobi HC JR No. 282 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1398/eng@2024-10-11

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