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Court of AppealPartially AllowedRule 5(2)(b) application dated 15th August, 2023 (arising from Narok HCCC No. 2 of 2021)· [2024] KECA 1799 (KLR)

Narok County Government & 1 other v Wycliffe Ondari Mwavali

Court of Appeal of Kenya
15 November 2024
2,232 words in judgment
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The bottom line

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Kenya's Court of Appeal paused execution of a Kshs.25.9 million judgment against Narok County Government, but only if it files its appeal and pays Kshs.5 million on time.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi on a Rule 5(2)(b) application by Narok County Government and Kesike Ole Wotuni seeking stay of execution of a judgment delivered on 16th March, 2023 by Gikonyo, J. in Narok HCCC No. 2 of 2021, in which the respondent, an employee injured in a road traffic accident in 2011, was awarded Kshs.25,898,707.00 plus interest. The applicants argued that their intended appeal, resting principally on a challenge to the award of Kshs.25,140,000.00 in general damages, was arguable and that execution, already partly effected through attachment of two vehicles, would render it nugatory since public funds risked being lost and the respondent could not refund the colossal decretal sum if the appeal succeeded. The respondent countered that the application was a ploy to delay enjoyment of the fruits of a judgment won after nearly ten years of litigation, and sought deposit of the full decretal sum as security. Applying the settled Munya principles - arguability, nugatory aspect, and public interest - the Court found a single bona fide arguable ground sufficient, noted the money-decree position with its riders, and balanced the parties' interests under the overriding objective. It allowed the motion conditionally: the applicants were to file their record of appeal within 30 days and pay the respondent Kshs.5 million within 45 days, failing which the application would stand dismissed with costs and execution would proceed. Costs of the application were to abide the outcome of the appeal. The decision does not disturb the High Court judgment; it preserves it in a conditional balance pending appeal.

Key legal issues

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01

Whether the intended appeal is arguable under Rule 5(2)(b)

Holding

The Court found the intended appeal arguable on the ground that the trial judge erred in awarding general damages of Kshs.25,140,000.00, without making definitive findings of fact or law.

Reasoning

The Court applied the settled principle that an applicant need only demonstrate a single bona fide arguable ground. One of the six grounds in the draft memorandum - that the learned Judge erred in awarding excessive general damages - sufficed. The Court declined to make definitive findings lest it embarrass the bench hearing the main appeal.

p. 3
02

Whether the appeal would be rendered nugatory if stay is refused

Holding

Although the decree is a money decree and the respondent is a County Government entity able to honour the decree, the Court balanced the parties' interests, noting the respondent's inability to refund the colossal decretal sum if the appeal succeeds.

Reasoning

The Court noted that the respondent had already attached assets of the first applicant. It applied the money-decree principle with its riders, weighing the respondent's right to the fruits of a judgment obtained after nearly 10 years and his severe injuries, against the risk that a county government decree holder could not refund the decretal sum if the appeal succeeded.

p. 4
03

Whether security should be excused for a government or public officer under Order 42 Rule 8 of the Civil Procedure (Amendment) Rules, 2020

Holding

Counsel for the applicants conceded that although Order 42 Rule 8 exempts government from furnishing security, the applicants were willing to abide by the Court's directions on security; the Court conditioned stay on a partial payment of Kshs.5 million.

Reasoning

The applicants submitted that no security is required from the Government under Order 42 Rule 8, but nonetheless offered to abide by the Court's directions. The Court, balancing interests and the overriding objective, placed the parties on an equal footing by ordering a substantial partial payment rather than the full decretal sum sought by the respondent.

p. 3

Legal principles established

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  • An appeal need not be shown that it will necessarily succeed; it is arguable if it raises at least a single bona fide arguable ground deserving full argument.
  • A money decree ordinarily does not render the success of an appeal nugatory where the respondent is able to repay the decretal amount, but riders may be applied where undue hardship would be caused.

Court orders

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  1. 1.The notice of motion dated 15th August, 2023 is allowed
  2. 2.The applicants shall file their record of appeal within 30 days from the date of the ruling
  3. 3.The applicants to pay the respondent Kshs.5 million within 45 days from the date of the ruling
  4. 4.Upon payment as aforesaid, the attached goods shall be released to the applicants
  5. 5.In the event the applicants fail to comply with conditions (a) and (b), the application shall stand dismissed with costs and execution shall proceed
  6. 6.The costs of the application shall abide the outcome of the appeal
On appeal from
High Court of Kenya
Narok HCCC No. 2 of 2021 (filed at Kericho High Court)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022; Sections 3, 3A and 3B of the Appellate Jurisdiction Act; Article 159 of the Constitution

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, "Narok County Government & 1 other v Wycliffe Ondari Mwavali", Case Analysis (2024). Rule 5(2)(b) application dated 15th August, 2023 (arising from Narok HCCC No. 2 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1799/eng@2024-11-15

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