Board of Trustees of the National Social Security Fund v Blantine Achitsa Induli & another (suing as the legal representative of the estate of the late Adrian Induli Shikali) [2008] KECA 310 (KLR)
The bottom line
#Kenya's Court of Appeal paused enforcement of a Shs.2.3 million judgment against NSSF because the appeal raised real questions worth hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The Court found the 21 grounds of appeal in the Memorandum of Appeal not frivolous, satisfying the arguability limb of the rule 5(2)(b) test.
Counsel for the applicant referred to the Memorandum of Appeal containing not less than twenty-one grounds. The Court considered the submissions and the grounds and concluded they could not be described as frivolous, expressly differing from the respondents' submission that the appeal was entirely without merit.
Whether the appeal would be rendered nugatory without a stay
The Court granted a conditional stay, taking into account the parties' respective positions, the respondents' demonstrated substantial properties, and the existing bank guarantee securing the decretal sum.
The applicant argued it could not recover the decretal sum if paid to respondents of unknown means; the respondents demonstrated ownership of substantial properties in Nairobi and Kakamega and that the 1st respondent is the applicant's employee. Weighing these factors and the existing bank guarantee, the Court granted stay conditional on a fresh guarantee of Shs.3,000,000/=.
Legal principles established
#- An applicant for stay under rule 5(2)(b) must demonstrate that the appeal is arguable, that it is not frivolous, and that the appeal would be rendered nugatory if stay is not granted; existing security (such as a bank guarantee) is a relevant consideration in the nugatory assessment.
Court orders
#- 1.Stay of execution of the decree of the superior court dated 30th May 2007 granted to the applicant
- 2.Stay conditional on the applicant providing a Bank guarantee to an aggregate amount of Shs.3,000,000/= within fourteen days, such guarantee to remain in force until the hearing and determination of the appeal or until further orders
- 3.Costs of the motion to be in the appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 549 of 2002
- 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, "Board of Trustees of the National Social Security Fund v Blantine Achitsa Induli & another (suing as the legal representative of the estate of the late Adrian Induli Shikali) [2008] KECA 310 (KLR)", Case Analysis (2008). Civil Appli No. 312 of 2007 (213/2007 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/310/eng@2008-02-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.