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Court of AppealPartially AllowedCivil Application No. Nai. 62 of 1998

SHADRACK KITOLO KIOKO vs EASTERN COMPUTER SCIENCE INSTITUTE LTD [1998] KECA 155 (KLR)

Court of Appeal
31 March 1998
ROR. S. C. OmoloAAA. M. AkiwumiGPG. S. Pall
378 words in judgment
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The bottom line

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Kenya's Court of Appeal granted only a partial stay, ruling an appeal is not arguable when you cannot genuinely dispute ownership of the disputed property.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Omolo, Akiwumi and Pall, JJ.A.) on an application for stay of execution of a ruling and orders of the High Court at Machakos (Mwera, J.) dated 29th January 1998 in H.C.C.C. No. 206 of 1997. The respondent had obtained interim orders against the applicant, a director of the respondent company, for the return of the respondent's equipment which he had removed, and restraining him from running a rival business. The applicant appealed and sought stay. The court held that ownership of the equipment had not been transferred to the applicant and that the applicant did not really deny this, rendering the appeal on that issue not arguable. It further held that the appeal would not be nugatory if stay were refused, since the equipment did not belong to the applicant. However, the court considered that the order restraining the applicant from running the rival company at all may be wrong. It therefore granted a stay limited to order 2 of the judge's orders of 29th January 1998 and refused the remainder of the application. Costs of the application were ordered to abide the appeal. The decision is binding on the High Court insofar as it restates the arguability and nugatory-value requirements for stay pending appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the appeal would be rendered nugatory if stay is not granted
  3. 3.Whether stay of the High Court orders of 29th January 1998 should be granted

Key legal issues

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01

Arguability of the intended appeal

Holding

The appeal on the ownership of the equipment was not arguable because the applicant did not really deny that the equipment belonged to the respondent.

Reasoning

The applicant alleged he had paid for the equipment but did not deny the respondent's ownership. The court treated this as an admission, making the appeal on that issue not arguable and defeating the first limb of the stay test.

p. 2
02

Nugatory value of the appeal

Holding

The appeal would not be nugatory if stay were refused, particularly since the removed equipment did not belong to the applicant.

Reasoning

The court held that even if the appeal succeeded, the applicant would not suffer irreparable loss because the equipment was not his; the equipment was being used to run a rival company, but that did not make refusal of stay ruinous.

p. 2
03

Correctness of the restraint on running a rival business

Holding

The court expressed the view that the order restraining the applicant from running the rival company at all may be wrong, and stayed only that (order 2).

Reasoning

Despite finding the equipment issue not arguable, the court considered the intimate connection between the equipment and the rival company and thought a blanket restraint on running the rival business may be wrong, warranting a stay limited to order 2.

p. 2

Legal principles established

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  • A stay pending appeal requires that the intended appeal be arguable and that it would be rendered nugatory if stay is not granted; where property ownership is not genuinely disputed, the appeal on that issue is not arguable.

Court orders

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  1. 1.Stay of execution granted only in respect of order 2 made by the learned judge on 29th January 1998
  2. 2.Stay refused with respect to the remaining orders, including the order restraining the applicant from running a rival company
  3. 3.Costs of the application to abide the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RO
majority
AA
majority
GP
majority
On appeal from
High Court of Kenya at Machakos
H.C.C.C. No. 206 of 1997
Jurisdiction invoked
Inherent appellate jurisdiction to grant stay of execution pending appeal (rule not specified in the judgment)

Relief refused

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Stay of the entire ruling and orders of the High Court, including the restraint on running a rival business

The court considered the restraint order may be wrong but the appeal would not be nugatory without a stay, since the equipment did not belong to the applicant

p. 2

Costs

The costs of this application to abide the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We do not think that the property in the equipment has been transferred from the respondent to the applicant, indeed the applicant does not really deny this. To our mind, this makes the appeal on this issue not arguable.
p. 2Arguability of intended appeal
we are not inclined to grant the order sought except with respect to the second order granted by the learned judge on 29th January, 1998. That is, we order a stay on order 2 made by the Judge.
p. 2Final orders - partial stay
The costs of this application to abide the appeal.
p. 2Costs order

Issues in the judgment

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minor

The judgment contains internal tension: the court finds the appeal on the equipment issue not arguable, yet grants a partial stay on the basis that the restraint order may be wrong, without explaining how the stay test is satisfied.

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, "SHADRACK KITOLO KIOKO vs EASTERN COMPUTER SCIENCE INSTITUTE LTD [1998] KECA 155 (KLR)", Case Analysis (1998). Civil Application No. Nai. 62 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/155/eng@1998-03-31

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