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Court of AppealDismissedCivil Application No. 166 of 2001

Abok James Odera T/A A. J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2001] KECA 21 (KLR)

Court of Appeal
6 July 2001
608 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to block release of Shs.10 million because the winning lawyer was wealthy enough to repay it if the appeal succeeded.

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 (Gicheru, Tunoi and Shah, JJA) on a notice of motion dated 29th May, 2001 brought under rule 5(2)(b) of the Court of Appeal Rules by Abok James Odera, an advocate, seeking stay of execution of an order of Kuloba J dated 24th May, 2001 in H.C.C.C. No. 183 of 1998. The order under challenge released to the respondent, John Patrick Machira, also an advocate, security funds of Shs.10 million plus accrued interest held at Standard Chartered Bank, Kimathi Street. The funds had been deposited under a stay granted by Okubasu J after summary judgment of 30th July, 1998 for Shs.19,681,581/35. The applicant's first appeal (Civil Appeal No. 176 of 1998) was struck out on a technicality; a second appeal (Civil Appeal No. 161 of 1999) was pending. The Court applied the established rule 5(2)(b) test that the intended appeal must not be rendered nugatory if stay is refused. It found the applicant's claim that recovery would be impossible to be feeble: the respondent was a prominent advocate of nearly 22 years standing owning unencumbered prime properties in Loresho, Nairobi South B and C, Kajiado, Naivasha and Nyeri valued at about Shs.35 million. The Court also rejected counsel's novel submission that lodging a subsequent appeal automatically required restoration of the earlier stay. The application was dismissed with costs on 6th July, 2001.

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, if successful, would be rendered nugatory if execution of the order releasing the security funds of Shs.10 million to the respondent is not stayed
  2. 2.Whether the lodging of a subsequent appeal after the earlier appeal was struck out obliged the Court to restore the previous order of stay

Key legal issues

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01

Whether the nugatory-appeal test for stay under rule 5(2)(b) was satisfied

Holding

The test was not satisfied. The respondent, a prominent advocate of some 22 years standing owning unencumbered prime properties valued at about Shs.35 million, could readily repay the funds if the appeal succeeded, so releasing the security would not render the appeal nugatory.

Reasoning

The Court assessed the respondent's means: two prime properties in Loresho, three in Nairobi South B and C, and other major properties in Kajiado, Naivasha and Nyeri, unencumbered and worth about Shs.35 million. Against that financial standing, the applicant's claim that recovery would be impossible or extremely difficult was characterised as feeble and as showing a lack of just reasons to deny the respondent the fruits of his judgment.

p. 2
02

Whether a subsequent appeal filed after the first was struck out automatically revives a lapsed stay

Holding

No. The Court declined to accept the submission that lodging a fresh appeal after the earlier one was struck out on a technicality required restoration of the previous order of stay.

Reasoning

Counsel for the applicant advanced what the Court called a novel submission: that because the applicant had lodged Civil Appeal No. 161 of 1999 after Civil Appeal No. 176 of 1998 was struck out on a technicality, the earlier stay conditional on the deposit of Shs.10 million had to be restored. The Court expressly disagreed, holding that no such automatic consequence follows, and dismissed the application with costs.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the Court that the intended appeal, if successful, would be rendered nugatory unless execution is stayed; mere assertion of substantial loss is insufficient where the decree-holder is demonstrably a person of means.
  • The lodging of a subsequent appeal after an earlier appeal is struck out does not of itself entitle an applicant to restoration of a previously granted order of stay.

Court orders

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  1. 1.The application for stay of execution of the ruling and order of Kuloba J dated 24th May, 2001 was 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
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 183 of 1998
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the order releasing the security funds of Shs.10 million plus accrued interest held at Standard Chartered Bank, Kimathi Street, Nairobi

The applicant failed to demonstrate that the appeal would be rendered nugatory; the respondent is a man of ample means and recovery of the funds if the appeal succeeds would not be impossible

p. 2

Restoration of the previous order of stay on the basis that a subsequent appeal had been lodged

The Court rejected counsel's submission that lodging a subsequent appeal after the earlier one was struck out necessarily required restoration of the earlier stay

p. 2

Costs

The application was 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.

One of the established propositions which must be satisfied if the applicant is to be granted the stay which he now seeks, is that his intended appeal, if successful, would be rendered nugatory, if we do not stay the execution of the order releasing the security funds to the respondent.
p. 1Rule 5(2)(b) - nugatory appeal test
The upshot of all this is that the application must fail and is accordingly dismissed with costs.
p. 2Final orders - dismissal with costs

Issues in the judgment

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minor

The judgment refers to 'Nariobi South B and C', an apparent typographical error for 'Nairobi South B and C' in the description of the respondent's properties.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Abok James Odera T/A A. J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2001] KECA 21 (KLR)", Case Analysis (2001). Civil Application No. 166 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/21/eng@2001-07-06

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