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Court of AppealDismissedCivil Appli. No. 86 of 2008 (UR. 49/08)· [2008] KECA 88 (KLR)

Rose Mbithe Ndetei v Mathew Kyalo Mbobu [2008] KECA 88 (KLR)

Court of Appeal
11 July 2008
Philip Kiptoo TunoiP.K. TunoiEGE.M. GithinjiJOJ.W. Onyango Otieno
2,172 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to halt a defamation payment because the applicant never filed a notice of appeal against the judgment itself.

What this practically means

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Executive summary

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This is a single-judgment ruling of a three-judge bench of the Court of Appeal at Nairobi dismissing an application under rule 5(2)(b) of the Court of Appeal Rules by Rose Mbithe Ndetei seeking stay of execution of a defamation decree of Ksh.1,500,000 plus taxed costs of Ksh.208,830 entered ex-parte by Mugo J. on 11th November 2005 against her. The applicant, who had sued for settlement of matrimonial property and written a letter the respondent considered defamatory of him as an advocate, had filed no appeal against that decree. Her notice of appeal targeted only the ruling of Khamoni J. of 21st April 2008 dismissing her application to set aside the ex-parte judgment. The Court held that its jurisdiction under rule 5(2)(b) to stay execution is donated only by the existence of a notice of appeal against the decree or order sought to be stayed; a notice against a ruling refusing to set aside judgment does not cover the underlying decree, since the grounds arising from a substantive judgment and from a discretionary ruling are different. The Court further held that Khamoni J.'s order, being negative and incapable of execution, could not be stayed. Although it accepted the intended appeal was arguable, the Court found the nugatory requirement unsatisfied: Ksh.500,000 had been deposited in court and the respondent, an advocate, lecturer and arbitrator, was unchallenged as capable of refunding the decretal amount. The notice of motion was dismissed with costs to the respondent. This ruling binds subordinate courts on the requirement of a matching notice of appeal for rule 5(2)(b) stay applications.

Key legal issues

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01

Whether a notice of appeal against a ruling refusing to set aside an ex-parte judgment supports a stay of the underlying ex-parte decree

Holding

It does not. The notice of appeal was specific to Khamoni J.'s ruling, and the legal issues arising from the substantive judgment and from the discretionary ruling are different, so the Court had no jurisdiction to stay the Mugo J. decree.

Reasoning

Rule 5(2)(b) requires a notice of appeal against the decree or order sought to be stayed. The notice on record targeted only the ruling of 21st April 2008. Counsel's argument that the ruling confirmed the earlier judgment was rejected because the notice was specific and the grounds of appeal arising from a substantive judgment differ from those arising from an exercise of discretion.

p. 3
02

Whether stay could issue in respect of a negative order dismissing a setting-aside application

Holding

No. Stay of execution applies only to orders capable of execution; a dismissal is a negative order with nothing to execute.

Reasoning

The Court observed that Khamoni J. merely dismissed the application for setting aside the judgment and made no positive order. There being nothing capable of execution, a stay of such an order is legally inconceivable, whether or not the application was framed to seek it.

p. 3
03

Whether the twin principles for stay under rule 5(2)(b) were satisfied

Holding

Arguability was conceded, but the nugatory test failed because the respondent, an advocate of means, could refund the decretal amount if the intended appeal succeeded.

Reasoning

The Court accepted the intended appeal was arguable but found the second hurdle insurmountable. Of the decretal sum, Ksh.500,000 had been deposited in court, and the respondent, an advocate, lecturer and arbitrator, was unchallenged in his assertion that he could refund any amount found due. The applicant failed to show he was a man of straw.

p. 4

Legal principles established

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  • The Court of Appeal's jurisdiction under rule 5(2)(b) to order stay of execution exists only where a notice of appeal has been lodged against the decree or order sought to be stayed.
  • A stay of execution cannot issue in respect of a negative order that merely dismisses an application and makes no positive order capable of execution.
  • An applicant under rule 5(2)(b) must demonstrate, first, that the appeal or intended appeal is arguable, and secondly, that its success would be rendered nugatory if stay is refused.
  • Where the decree sought to be stayed is a money decree and the decree-holder is shown to be financially capable of refunding the decretal amount should the appeal succeed, the nugatory requirement is not satisfied.

Court orders

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  1. 1.The notice of motion dated 7th May 2008 seeking stay of execution is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Married Women's Property Act, 1882section 17
  • Civil Procedure RulesOrder IX B rule 8
  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 74

Cases cited (2)

  • Githunguri vs. Jimba Credit Corporation (No. 2)
    (1988) KLR 838
  • J.K. Industries vs. Kenya Commercial Bank Ltd & another
    (1987) KLR 506
On appeal from
High Court of Kenya at Nairobi
H.C.C.C No. 155 of 2004
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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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, "Rose Mbithe Ndetei v Mathew Kyalo Mbobu [2008] KECA 88 (KLR)", Case Analysis (2008). Civil Appli. No. 86 of 2008 (UR. 49/08). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/88/eng@2008-07-11

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