Likoni Mainland Taxi Service Group v Yooshin Engineering Corporation (Civil Application E060 of 2024) [2024] KECA 1567 (KLR)
The bottom line
#Kenya's Court of Appeal blocked execution of a Sh1.18 million decree against AIA Architect Ltd, ruling that unrebutted claims about the judgment creditor's inability to refund money justified preserving the status quo pending appeal.
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 (not frivolous)
- 2.Whether, unless the orders sought are granted, the intended appeal, if successful, will be rendered nugatory
- 3.Whether the applicant is entitled to an injunction restraining execution of the decree pending the intended appeal
Key legal issues
#The correct principles governing applications under rule 5(2)(b) of the Court of Appeal Rules
The twin principles of arguability and nugatory effect must both be demonstrated; the respondent relied on the wrong (Giella v Cassman Brown injunction) principles.
The court restated the established twin-limb test for rule 5(2)(b) applications, drawing on Kang'ethe Kinyanjui, Mandavia and Somak Travels. It noted that the respondent's written submissions were founded on the Giella v Cassman Brown injunction principles, which apply to interlocutory injunctions, not rule 5(2)(b) applications, so the correct principles were never addressed by the respondent.
Arguability of the intended appeal
The intended appeal was arguable, particularly on the ground that the learned Judge failed to consider the principles for setting aside an ex parte ruling.
The matter involved stay of execution for costs following taxation conducted in the applicant's absence and stay of sale of attached properties. The contention that the Judge did not consider the principles applicable to setting aside an ex parte decision raised triable issues justifying preservation. The court said no more so as not to embarrass the bench hearing the appeal.
Nugatory aspect and burden of proof on impecuniosity
The allegations of the respondent's impecuniosity, foreign status and lack of known abode were unrebutted, establishing that the appeal would be rendered nugatory absent an order.
Once impecuniosity of a respondent to refund the decretal amount is raised, the burden shifts to the respondent to demonstrate ability to refund. The respondent filed no affidavit in response - only its advocate's affidavit - and did not controvert the allegations that it could not compensate the applicant if the appeal succeeded, potentially taking the attached property out of the country.
Legal principles established
#- To obtain relief under rule 5(2)(b) of the Court of Appeal Rules, an applicant must demonstrate the twin limbs: an arguable appeal and that the appeal will be rendered nugatory unless the orders are granted.
- An applicant under rule 5(2)(b) need not show a multiplicity of grounds; even one arguable ground of appeal will suffice.
- Where a respondent's impecuniosity to refund the decretal amount is raised, the burden shifts to the respondent to show ability to refund; allegations of impecuniosity, foreign status and lack of known abode, if uncontroverted, establish the nugatory limb.
Court orders
#- 1.The notice of motion (referred to in the orders as dated 16th April 2024) is allowed
- 2.An order of injunction do issue against the respondent, their personal representatives, employees, agents or any other person acting under their instructions, barring them from interfering in any way whatsoever with the applicant's goods arising from any purported execution of the decree passed on 21st December 2023, pending the hearing and determination of the intended appeal
- 3.The costs of the application shall abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Misc. Application No. E013 of 2023 (ruling of 24th May 2024 by Magare, J)
- 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.
we find that the applicant has satisfied the twin principles which the Court considers in an application brought under rule 5 (2)(b) of its Rules.
An order of injunction do issue against the respondent, their personal representative, employees, agents or any other person acting under their instructions, barring them from interfering in anyway whatsoever with the applicant's goods arising from any purported execution of the decree arising from the decree passed on the 21st December 2023 pending the hearing and determination of the intended appeal.
It is trite that once an issue of impecuniosity of the respondent to refund decretal amount if the stay is not granted and the appeal succeeds is raised, the burden shifts to the respondent in person to show that they have the ability to refund.
The costs of the application shall abide the outcome of the intended appeal.
Issues in the judgment
#The application is described throughout as dated 30th May 2024, but the final orders allow 'the notice of motion dated 16th April 2024', an unexplained discrepancy.
The court criticises the respondent for relying on the wrong citation and year of Giella v Cassman Brown ('Geilla... 1974 EA 358') while the judgment itself earlier cites it as 'Giella v Cassman Brown & Co. Ltd [1973] EA 358'.
The respondent is variously referred to in the singular and plural, and the court states 'The respondent did not even file afidavit in response to the application' although a replying affidavit of its advocate (Mary Njagi, sworn 14th June 2024) was filed and considered.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Likoni Mainland Taxi Service Group v Yooshin Engineering Corporation (Civil Application E060 of 2024) [2024] KECA 1567 (KLR)", Case Analysis (2024). Application dated 30th May 2024 (arising from intended appeal against High Court ruling of 24th May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1567/eng@2024-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.