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Court of AppealAllowedCivil Application No NAI 251 of 1994· [1995] KECA 159 (KLR)

Arthur K. Magugu & another v Gitutho Associates & 3 others [1995] KECA 159 (KLR)

Court of Appeal of Kenya
20 January 1995
RKR.O. KwachAAA.M. AkiwumiASA.B. Shah
1,227 words in judgment
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The bottom line

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Kenya's Court of Appeal stayed execution of a Shs 17.7 million judgment, holding that even a litigant with bad conduct deserves a fair hearing on the merits.

What this practically means

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Executive summary

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The applicants, Arthur K. Magugu and Inn of Inns Ltd, applied under rule 5(2)(b) of the Court of Appeal Rules for a stay of execution of summary judgment entered by Wambilyangah, J on 29th July 1994 in HCCC No 15 of 1994 for Shs 17,773,889/- against them in favour of four firms of consultants who rendered engineering and architectural services for two development properties. The respondents had obtained summary judgment after the applicants filed a bare denial to a composite fee note they admitted receiving but disputed or failed to settle for over a year. The applicants argued that payment was conditional on their obtaining project financing, that they never engaged three of the respondents, and that the fees exceeded the scales under the Architects and Quantity Surveyors Act (cap 525). Notably, Omolo and Tunoi, JJA disqualified themselves after being approached by persons purporting to act for Mr Magugu, and the coram was changed. The Court of Appeal accepted that Mr Magugu's track record was appalling but held that a court of justice cannot permit a litigant's conduct to deter it from considering redeeming features of his case. Finding an arguable appeal and a reasonable defence on affidavit, particularly given uncontroverted allegations that the plans were prepared to hoodwink financiers with the respondents' connivance, the court allowed the application, staying execution on condition that the applicants execute a bank guarantee of Shs 10,000,000/- within 14 days, in default of which the application would stand dismissed with costs. The respondents were ordered to return all attached property at their own expense, and the court made no order as to costs.

Key legal issues

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01

Whether the applicants demonstrated an arguable appeal under rule 5(2)(b)

Holding

The court was satisfied the applicants had shown an arguable appeal, particularly given the uncontroverted allegation that the plans were prepared to hoodwink financiers.

Reasoning

The applicants' affidavit alleged, uncontroverted by any respondent affidavits, that the plans were prepared to deceive financiers with the respondents' connivance. Combined with the judge's rejection of the quantity surveyor's opinion and the fee-scales complaint, the court found the appeal arguable and granted a stay on terms.

p. 2
02

Whether a defendant's conduct can disqualify him from discretionary relief

Holding

Even reprehensible conduct by a litigant does not preclude the court from considering redeeming features of his case.

Reasoning

Although Mr Magugu's track record was described as completely appalling, the court held that as a court of justice it could not let such conduct prevent consideration of the merits. The truth could not be determined without a trial, justifying a stay on terms.

p. 2
03

Whether the applicants showed a reasonable defence to the claim

Holding

The applicants showed, by affidavit, a reasonable defence to the claim of Shs 17,773,889/-

Reasoning

The defence alleged conditional payment terms tied to securing financing, non-engagement of three respondents, and fees exceeding statutory scales under the Architects and Quantity Surveyors Act. On the affidavit material the applicants established a reasonable defence meriting a conditional stay.

p. 2

Legal principles established

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  • A court of justice cannot permit a party's reprehensible conduct to deter it from considering any redeeming features of that party's case when assessing an arguable appeal for stay purposes.

Court orders

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  1. 1.Execution of the judgment and decree of Wambilyangah, J stayed pending the hearing and final determination of the intended appeal or further order
  2. 2.Applicants to execute a guarantee by a reputable commercial bank in the sum of Shs 10,000,000/- within 14 days, and in default the application to stand dismissed with costs
  3. 3.Respondents to forthwith release and return to the applicants all vehicles and household goods attached in execution of the decree, at the respondents' own expense
  4. 4.No order as to costs

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)
  • Civil Procedure Rulesorder 35 rule 1
  • Architects and Quantity Surveyors Act (cap 525)scales laid down thereunder
On appeal from
High Court of Kenya at Mombasa
HCCC No 15 of 1994
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Arthur K. Magugu & another v Gitutho Associates & 3 others [1995] KECA 159 (KLR)", Case Analysis (1995). Civil Application No NAI 251 of 1994. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1995/159/eng@1995-01-20

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