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Court of AppealDismissedCivil Application No. Nai. 154 of 1999 (56/99 UR)

STEPHEN KIMONDO KARUKU,TERESIA WANJIKU NJOROGE,THE ESTATE OF THE LATE MONICA WAMAITHA KIHARA vs CECILIA W. KIHARA [1999] KECA 47 (KLR)

Court of Appeal
22 July 1999
257 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to pause the High Court's order because the applicants couldn't show the appeal would become pointless without a stay.

What this practically means

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Executive summary

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This was an application to the Court of Appeal at Mombasa under Rule 5(2)(b) of the Court of Appeal Rules for a stay of execution of a ruling and order of the High Court of Kenya at Mombasa (Waki J) dated 4th February 1999. The applicants were Stephen Kimondo Karuku, Esther Wanjiku Njoroge and the estate of the late Monica Wamaitha Kihara; the respondent was Cecilia W. Kihara. The court, comprising Chesoni CJ, Lakha and Owuor JJ.A, restated the well-established twin conditions for the grant of a stay pending appeal: first, that the intended appeal must be arguable, and secondly, that if a stay is not granted, the intended appeal, if successful, would be rendered nugatory. Having heard counsel for the applicants, the court assumed, without deciding, that the intended appeal was not frivolous, but was not persuaded that the appeal would be rendered nugatory if a stay were refused. Since the nugatory limb was not satisfied, the application could not succeed. The court dismissed the application with costs to the respondent. The ruling is a short, single judgment of the whole court delivered on 22nd July 1999; it does not disturb the High Court's decision, which remains in force and executable, and it cites no prior authorities.

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 intended appeal, if successful, would be rendered nugatory if a stay of execution is not granted

Key legal issues

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01

Whether the applicants met the twin criteria for a stay of execution pending appeal under Rule 5(2)(b)

Holding

The application failed because the nugatory requirement was not satisfied; the court assumed without deciding that the appeal was arguable but found no nugatory effect.

Reasoning

The court restated the settled twin conditions for stay under Rule 5(2)(b): arguability of the intended appeal and the risk that a successful appeal would be rendered nugatory. Counsel for the applicants was heard, but the court was not persuaded that refusal of a stay would render the appeal nugatory. Since both conditions must be satisfied, failure on the nugatory limb was fatal to the application, which was dismissed with costs.

p. 2

Legal principles established

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  • An application for stay of execution under Rule 5(2)(b) must satisfy two conditions: the intended appeal must be arguable, and the appeal must be rendered nugatory if stay is not granted.

Court orders

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  1. 1.The application for stay of execution is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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

majority

Wrote the judgment

majority
majority
On appeal from
High Court of Kenya at Mombasa
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the ruling and order of the High Court (Waki J) dated 4th February 1999

Even assuming the intended appeal was arguable, the applicants failed to demonstrate that the appeal would be rendered nugatory if stay was not granted

p. 2

Costs

The application is dismissed with costs to the respondent.

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.

There are two conditions which must be satisfied; first the intended appeal must be an arguable appeal and secondly if a stay is not granted the intended appeal if successful would be rendered nugatory.
p. 2Twin conditions for stay under Rule 5(2)(b)
Accordingly the application is dismissed, with costs.
p. 2Final orders - dismissal of the stay application

Issues in the judgment

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minor

The delivery date is recorded as 'this 22rd day of July, 1999' - an apparent typographical error for 22nd; also the party names contain typographical corruption ('ATEPRPELSIICAA NT WANJIKU NJOROGE').

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, "STEPHEN KIMONDO KARUKU,TERESIA WANJIKU NJOROGE,THE ESTATE OF THE LATE MONICA WAMAITHA KIHARA vs CECILIA W. KIHARA [1999] KECA 47 (KLR)", Case Analysis (1999). Civil Application No. Nai. 154 of 1999 (56/99 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/47/eng@1999-07-22

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