Kenya Ports Authority v Kustrom (K) LTD. [1995] KECA 133 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Merit of the intended appeal under rule 5(2)(b)
The intended appeal was not frivolous; the applicant demonstrated substantial points, including non-compliance with the statutory notice requirement under section 65 of Cap 391 and triable issues in its defence.
The court perused the draft memorandum of appeal and counsel's submissions that the respondent had not given the notice of claim mandated by section 65 of Cap 391, and that the defence disclosed triable issues. It concluded the applicant had shown prima facie substantial points, satisfying the first limb of the settled rule 5(2)(b) principles.
Nugatory value of the appeal if stay is refused
The appeal would be rendered nugatory if the substantial decretal sum were paid to a respondent whose capital base was unproven and whose ability to repay was uncertain.
The decree was substantial (about Shs 10,000,000). The court was not told the respondent's capital base and could not say the decretal sum, if paid, would not be beyond the applicant's reach and control to recover. Conversely the applicant's ability to pay was beyond doubt, so conditions were unnecessary and an unconditional stay was granted.
Legal principles established
#- An applicant under rule 5(2)(b) must first demonstrate that the intended appeal is not frivolous, showing prima facie substantial points to present on appeal.
- The second limb of the rule 5(2)(b) test is whether the appeal, if successful, would be rendered nugatory absent a stay, assessed against the substance and ability to pay of the parties.
- Where the decretal sum is substantial and the respondent's capacity to repay is unproven, while the applicant's ability to pay is beyond doubt, stay ought to issue.
Court orders
#- 1.Stay of execution granted without conditions pending the hearing and final determination of the intended appeal
- 2.Costs of the application to be costs in the intended appeal
- On appeal from
- High Court of Kenya at Machakos
- HCCC No 93 of 1995
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Ports Authority v Kustrom (K) LTD. [1995] KECA 133 (KLR)", Case Analysis (1995). Civil Application No NAI 162 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/133/eng@1995-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.