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Court of AppealDismissedCivil Application 340 of 2008

Meteine Ole Kilelu & 19 others v Moses K. Nailole [2009] KECA 24 (KLR)

Court of Appeal of Kenya
18 December 2009
EGE. M. GithinjiJOJ. W. Onyango OtienoJNJ. G. Nyamu
1,643 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to pause a defamation payout because the applicants proved only one of two required grounds for a stay of execution.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi on a notice of motion dated 29th December 2008 by twenty appellants seeking a stay of execution of a decree of the High Court (Visram J, 8th November 2005) awarding the respondent Ksh.2,300,000 — Ksh.2,000,000 general and Ksh.300,000 exemplary damages — for defamation by a letter to the Permanent Secretary, Ministry of Local Government. The application was brought under rule 5(2)(b) of the Court of Appeal Rules, though the wrong rules had been cited; the Court treated it as properly premised on rule 5(2)(b) based on its substance. The Court restated the settled two-limb test: the applicant must show the appeal is arguable and that its success would be rendered nugatory if stay is refused, both limbs being mandatory. The Court accepted the appeal was arguable but held the applicants failed the nugatory limb: where the decree is a money decree, the applicant must show either that the money could not be recovered from the respondent after execution, or that execution would ruin his business or threaten his existence. The 'irreparable damage' test invoked by the applicants belongs to injunction applications, not rule 5(2)(b). The Court also noted, without deciding, points on the authority of the deponent of the supporting affidavit and the delay of over three years in bringing the application. The application was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal is arguable
  2. 2.Whether, if the appeal succeeds, its result would be rendered nugatory if stay of execution is refused
  3. 3.Whether the supporting affidavit was sworn by a person with authority to swear it on behalf of all applicants (noted but not decided)

Key legal issues

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01

The principles governing an application for stay of execution under rule 5(2)(b) of the Court of Appeal Rules

Holding

The applicant must show the appeal is arguable and that its success would be rendered nugatory if stay is refused; both must be established.

Reasoning

The Court restated the settled two-limb test, citing Reliance Bank Ltd v Norlake Investments Ltd and Caltex Oil Company (Kenya) Ltd v Evanson Njiru Wanjihia. It accepted the appeal was arguable but held the applicants failed the nugatory limb: they offered no evidence that the respondent could not refund the decretal amount, and the 'irreparable damage' test they invoked belongs to injunction applications in the superior courts, not rule 5(2)(b) applications.

p. 1
02

The applicable nugatory test where the decree under appeal is a money decree

Holding

The applicant must show the respondent is a man of straw or that execution would ruin his business or threaten his existence; the applicants did neither.

Reasoning

The Court distinguished the injunction test of irreparable damage from the rule 5(2)(b) nugatory-ness test. Because the decree was for Ksh.2,300,000, a money decree, the applicants needed to demonstrate that the respondent would be unable to repay if the appeal succeeded, or that execution would ruin them, but they neither stated so in their affidavit nor demonstrated it at the hearing.

p. 3
03

Citation of the wrong rules and the authority of the deponent of the supporting affidavit

Holding

The Court found both technical points valid but declined to decide them because the application failed on the nugatory limb in any event.

Reasoning

The respondents argued the supporting affidavit was sworn without authority on behalf of the twenty applicants, and the Court itself observed the wrong rule had been cited. However, because the application would fail regardless on the nugatory-ness limb, the Court expressly said nothing on the two technical aspects.

p. 3

Legal principles established

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  • An applicant for stay under rule 5(2)(b) must demonstrate both that the appeal is arguable and that its success would be rendered nugatory if stay is refused; both limbs must be satisfied and satisfaction of only one is insufficient.
  • For a money decree, an applicant must show either that recovery of the decretal amount from the respondent after execution would be impossible, or that execution of the decretal amount relative to the applicant's status or business would ruin the applicant's business or threaten his existence; irreparable damage is not the applicable test.
  • Where an application cites the wrong rule of the Court's Rules, the Court may treat it as brought under the correct rule having regard to its substance.

Court orders

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  1. 1.The notice of motion dated 29th December 2008 seeking stay of execution is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EG
majority
JO
majority
JN
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2523 of 1998
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)

Relief refused

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Stay of execution of the decree from the judgment of Visram J dated 8th November 2005 pending the hearing and determination of the appeal

The applicants failed to satisfy the second limb of the rule 5(2)(b) test; they did not demonstrate that the success of the appeal would be rendered nugatory by refusal of stay

p. 3

Costs

The notice of motion is dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

These two principles must be satisfied before the Court, can grant the orders sought and it is not enough that one principle is satisfied. If the other is not satisfied then the order sought cannot be granted.
p. 2Dual requirement of arguability and nugatory-ness under rule 5(2)(b)
That, with respect is one of the tests in cases of applications for injunction in the superior courts and below, it is not the required test under rule 5 (2) (b) of this Court’s Rules.
p. 3Irreparable damage is not the stay test
The effect of their failure to satisfy the second limb is that the entire application cannot succeed as both limbs must be proved to the satisfaction of the Court. In short, the notice of motion has no merits. It is dismissed with costs to the respondent.
p. 3Final orders - dismissal of the application

Issues in the judgment

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minor

The judgment inconsistently refers to the respondent as 'the appellant' when describing the defamatory allegations

minor

Typographical error in the word 'results' as 'reults' in the record of the respondent counsel's submissions

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Meteine Ole Kilelu & 19 others v Moses K. Nailole [2009] KECA 24 (KLR)", Case Analysis (2009). Civil Application 340 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/24/eng@2009-12-18

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