Narok County Government & 1 other v Wycliffe Ondari Mwavali
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable under Rule 5(2)(b)
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.
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.
Whether the appeal would be rendered nugatory if stay is refused
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.
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.
Whether security should be excused for a government or public officer under Order 42 Rule 8 of the Civil Procedure (Amendment) Rules, 2020
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.
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 15th August, 2023 is allowed
- 2.The applicants shall file their record of appeal within 30 days from the date of the ruling
- 3.The applicants to pay the respondent Kshs.5 million within 45 days from the date of the ruling
- 4.Upon payment as aforesaid, the attached goods shall be released to the applicants
- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.