Job Kilach v Nation Media Group & 2 others
The bottom line
#Kenya's Court of Appeal halted collection of an 11.7 million shilling decree against a guarantor, ruling his appeal was worth hearing because the guarantee's terms were genuinely disputed.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal against summary judgment was arguable
The appeal was arguable because it was debatable whether the applicant's liability as guarantor was conditional or absolute, given averments in the defence that the guarantee was conditional on a fresh Newspaper Distribution Agreement and was procured by deceit.
The letter of understanding showed the applicant was not the principal debtor; Salaba Agencies Ltd was. The defence pleaded that the guarantee was conditional on the respondent offering a fresh Newspaper Distribution Agreement, which it failed to do, and that the guarantee was obtained by deceit. The court held it was arguable whether the applicant's liability was conditional or absolute, satisfying the first limb of rule 5(2)(b).
Whether the intended appeal would be rendered nugatory without a stay
Yes. The decretal sum was so large that very few individuals could pay it without being overly destabilised, whereas the respondent, a leading media company, could be compensated by interest if the appeal failed.
Applying Oraro & Rachier Advocates v Co-operative Bank of Kenya Limited, the court weighed the claims of both sides. The applicant was an individual guarantor facing a colossal decretal sum; the respondent was a leading media company that would be compensated by an award of interest if the appeal failed. The balance tilted in favour of granting a stay.
Legal principles established
#- To succeed on an application under rule 5(2)(b), an applicant must demonstrate both that the appeal or intended appeal is arguable and that, unless a stay or injunction is granted, the appeal will be rendered nugatory.
- In dealing with the nugatory-aspect limb of a rule 5(2)(b) application involving money decrees, the court ought to weigh the claims of both sides, including the relative ability of the parties to refund or be compensated.
- Under O.XXXV rule 1 of the Civil Procedure Rules, a defendant may show by affidavit 'or otherwise' that he should be granted leave to defend, and 'or otherwise' has been judicially held to include a written statement of defence.
Court orders
#- 1.Stay of execution of the decree in Nairobi HCCC No. 80 of 2003 pending the entering, hearing and determination of the intended appeal, as prayed in prayer (1) of the notice of motion dated 20th June 2005
- 2.Costs shall be in the intended appeal
- On appeal from
- High Court of Kenya at Nairobi, Milimani
- H.C.C.C. No. 80 of 2003
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Job Kilach v Nation Media Group & 2 others", Case Analysis (2006). Civil Application No. 168 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/224/eng@2006-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.