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Court of AppealDismissedCivil Application No. NAI 33 of 2003· [2003] KECA 103 (KLR)

Francis Mburu Robi T/A Robico Chemicals v Ecolab E. A. Limited

Court of Appeal
7 March 2003
ROR.S.C. OmoloEOE.O. O'KubasuMKM. Ole Keiwua
851 words in judgment
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The bottom line

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Winning an arguable appeal is not enough in Kenya — the Court of Appeal refused a stay because the judgment debtor could not prove the appeal would be worthless without one.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi (Omolo, O'Kubasu and Keiwua JJ.A) determines an application under rule 5(2)(b) of the Court of Appeal Rules by Francis Mburu Robi, trading as Robico Chemicals, the unsuccessful defendant, for a stay of execution of a decree of the superior court (Nyamu J) given on 7th February 2003 pending an intended appeal. Ecolab E. A. Limited had sued for Shs.2,400,000/- due for goods sold and delivered in 1997. The claim, denied by an amended defence that included a counterclaim, was met with a Notice of Motion under Order XXXV rule 1 of the Civil Procedure Rules, and the learned Judge entered summary judgment for the plaintiff as prayed, holding that the delivery notes were signed by the defendant, that the plaintiff was not concerned with any alleged lack of authority from undisclosed partners, and that no evidence of payment or triable defence had been demonstrated. A notice of appeal had been filed but the appeal itself had not. Counsel for the applicant argued procedural errors in the superior court, including the dismissal of an earlier summary judgment application and the later filing of the amended plaint. The respondent submitted that the intended appeal was not arguable and that it, a multi-national company, would have no difficulty refunding Shs.2,400,000/- if the appeal succeeded. Applying the twin principles it had restated in Trust Bank Limited v Investech Bank Limited - arguability and nugatoriness - the court found the intended appeal arguable but was not persuaded it would be rendered nugatory without a stay, noting that the respondent held a judgment that had to be taken into consideration. The application was dismissed, with costs in the intended appeal.

Key legal issues

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01

What an applicant must demonstrate to obtain a stay of execution under rule 5(2)(b) of the Court of Appeal Rules.

Holding

The applicant must show, first, that the appeal or intended appeal is arguable (not frivolous) and, secondly, that unless a stay is granted the appeal, if successful, will be rendered nugatory. The jurisdiction is original and discretionary, and the twin principles are applied against the facts and circumstances of each case.

Reasoning

Restating its own earlier decision in Trust Bank Limited v Investech Bank Limited, the court treated the twin principles as trite law governing rule 5(2)(b) applications. Because the jurisdiction is original and discretionary, the principles are not mechanical hurdles but guides to be weighed against the circumstances of each case, including the existence of the judgment sought to be stayed.

p. 2
02

Whether the applicant's intended appeal against the summary judgment of Nyamu J was arguable.

Holding

Yes. After considering the rival contentions, the court was satisfied that the applicant had an arguable appeal, but that finding alone did not entitle him to a stay.

Reasoning

Counsel for the applicant relied on alleged procedural errors in the superior court, including that an earlier application for summary judgment had been dismissed and that the amended plaint had been filed after that application. The court accepted that the intended appeal was arguable, but the applicant still had to satisfy the second, nugatory limb of the rule 5(2)(b) test to obtain a stay.

p. 2
03

Whether the intended appeal, if successful, would be rendered nugatory if the stay was refused.

Holding

No. The court was not persuaded that the appeal would be rendered nugatory without a stay: the respondent held a judgment in its favour, which had to be taken into consideration, and indicated that it could refund the decretal sum if the applicant succeeded.

Reasoning

Asked how the appeal would be rendered nugatory, counsel for the applicant could only say his client's business would be crippled. The court weighed this against the respondent's subsisting judgment, which had to be taken into consideration, and the respondent's position as a multi-national company with no difficulty refunding Shs.2,400,000/- if the appeal succeeded. The nugatory limb therefore failed and the application was dismissed.

p. 2

Legal principles established

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  • An applicant for a stay of execution under rule 5(2)(b) of the Court of Appeal Rules must satisfy two cumulative conditions: that the appeal or intended appeal is arguable, and that unless a stay is granted the appeal, if successful, will be rendered nugatory. The jurisdiction is original and discretionary.
  • The twin rule 5(2)(b) principles are not applied in the abstract; they must be weighed against the facts and circumstances of each case.
  • In assessing whether a refusal of stay will render an appeal nugatory, the court must take into account the fact that the respondent holds a judgment in its favour.

Court orders

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  1. 1.The application for stay of execution pending appeal under rule 5(2)(b) is dismissed.
  2. 2.Costs of the application shall be in the intended appeal (as printed: 'The costs, thereof shall be in the interested appeal.').
On appeal from
High Court (referred to in the ruling as 'the superior court')
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (the 'Rules of this Court') - the original discretionary jurisdiction of the Court of Appeal to order a stay of execution pending appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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, "Francis Mburu Robi T/A Robico Chemicals v Ecolab E. A. Limited", Case Analysis (2003). Civil Application No. NAI 33 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/103/eng@2003-03-07

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