KENSAN INSURANCE BROKERS LIMITED & ANOTHER vs KENINDIA ASSURANCE COMPANY LIMITED [1997] KECA 270 (KLR)
The bottom line
#Kenya's Court of Appeal granted a stay of execution only on condition the full decretal amount was deposited, confirming hardship alone cannot justify a stay.
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 a stay is granted, the intended appeal will be rendered nugatory
Key legal issues
#The twin requirements for stay of execution under rule 5(2)(b)
The applicants satisfied the arguability limb but failed the nugatory-ness limb; stay was nonetheless granted conditionally on the respondent's concession, subject to deposit of the decretal amount
The court reaffirmed that both requirements must be met: the intended appeal must be arguable, and the appeal must be rendered nugatory if stay is refused. Arguability was conceded as satisfied. On nugatory-ness, counsel for the applicants properly conceded that the respondent could repay the decretal amount if the appeal succeeded, and that hardship alone could not render the appeal nugatory. The court granted stay only because the respondent conceded not to object upon sufficient security, imposing a deposit condition.
Whether hardship or sympathy can found the nugatory requirement
Hardship does not, in the circumstances, supply the basis for finding an appeal would be rendered nugatory
Counsel urged that refusal of stay would cause considerable hardship. The court accepted hardship may exist but held that no authority was cited showing that sympathy and/or hardship can supply the basis for rendering an appeal nugatory. The inability of the respondent to repay the decretal amount, not hardship, is what ordinarily establishes nugatory-ness.
Sanctioning breaches of the rules of procedure in execution
The court declined costs against the applicants as a mark of disapproval of the respondent's flagrant breaches of the rules in preparing and executing the decree
Although the application succeeded only conditionally, the court noted that the respondent flouted the rules of procedure in the preparation and execution of the decree. As a mark of disapproval of these flagrant breaches, the court made no order for costs, effectively leaving each party to bear its own costs of the application.
Legal principles established
#- Summary judgment being a strong and summary remedy, it may be granted only in the clearest of cases and with extreme caution
- Under rule 5(2)(b), an applicant for stay must satisfy both limbs: an arguable appeal and that the appeal will be rendered nugatory unless stay is granted; sympathy or hardship cannot substitute for nugatory-ness
Court orders
#- 1.Stay of execution of the order of the superior court granted on condition that the applicants deposit the whole decretal amount into a joint account of the parties' advocates with a bank of repute within thirty days, failing which the stay shall lapse
- 2.No order for costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Unconditional stay of execution
The applicants could not show that the appeal would be rendered nugatory without a stay; hardship alone does not satisfy the nugatory requirement
Costs of the application
The respondent flouted the rules of procedure in preparing and executing the decree, and the court marked its disapproval by making no order for costs
Costs
No order for costs of the application; each party to bear their own costs as a mark of the court's disapproval of the respondent's flagrant breaches of the rules of procedure
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.
the learned judge was granting the very strong and summary remedy which he must only do in the clearest of cases and with extreme caution
while we are satisfied that the applicants have an arguable appeal we are not satisfied on the second requirement that unless a stay is granted the intended appeal will be rendered nugatory
no decision was cited to show that sympathy and/or hardship can supply the basis that could, in the circumstances of this case, be considered to render an appeal nugatory
we grant the application for stay on condition that the applicants shall deposit into a joint account of the parties' advocates the whole decretal amount with a Bank of repute within thirty (30) days hereof failing which the stay shall lapse
As a mark of our disapproval of the respondent's flagrant breaches of the rules in this regard, we do not make any order for costs of this application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KENSAN INSURANCE BROKERS LIMITED & ANOTHER vs KENINDIA ASSURANCE COMPANY LIMITED [1997] KECA 270 (KLR)", Case Analysis (1997). Civil Application No. Nai. 94 of 1997 (45/97UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/270/eng@1997-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.