Muraya Wandungu v Resident Magistrate (Nakuru)& Another [2002] KECA 235 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a ruling because the applicant showed neither a strong appeal nor harm from waiting.
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 or likely to succeed
- 2.Whether the appeal would be rendered nugatory if the orders sought are not granted
Key legal issues
#Whether the applicant met the settled principles for relief under rule 5(2)(b)
The application failed because the applicant did not satisfy either limb of the test - the intended appeal was not shown to be arguable, nor was nugatory prejudice demonstrated.
The court restated the two well-settled principles governing rule 5(2)(b) applications: arguability (or non-frivolousness) of the intended appeal, and nugatory-ness if the orders are not granted. Counsel for the applicant satisfied the court on neither limb, and the court was not persuaded that the appeal was arguable or would be rendered nugatory. The application therefore failed and was dismissed with costs.
Legal principles established
#- On an application under rule 5(2)(b) for stay of execution or injunction pending appeal, the applicant must first show that the intended appeal is arguable or not frivolous, and secondly that the appeal would be rendered nugatory if the orders sought are not granted.
Court orders
#- 1.The application for stay of execution (and injunction) pending appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- H.C. Misc. Application No. 63 of 2001
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Orders of injunction or stay of execution pending the hearing and determination of an intended appeal
The applicant failed to satisfy either of the settled principles: the intended appeal was neither arguable nor likely to succeed, nor would it be rendered nugatory
Costs
The application was dismissed with costs (costs to the respondents).
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 principles upon which this Court acts in an application of this nature are now well settled.
First, the applicant has to demonstrate that the intended appeal is likely to succeed or that it is not frivolous. Secondly, the applicant has to show that the appeal would be rendered nugatory if the orders sought are granted.
That being so, this application fails. It is therefore dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muraya Wandungu v Resident Magistrate (Nakuru)& Another [2002] KECA 235 (KLR)", Case Analysis (2002). Civil Application No. Nai. 336 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/235/eng@2002-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.