TITUS KIONDO MUYA V PETER NJOROGE BAIYA & 3 OTHERS [2009] KECA 95 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause payment of Kshs 1 million in election petition costs because the winning side could clearly afford to refund them if the appeal succeeded.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant's intended appeal against the taxation reference ruling is arguable
- 2.Whether, unless a stay of execution is granted, the success of the intended appeal would be rendered nugatory given the 1st respondent's ability to refund the taxed costs
Key legal issues
#Whether the intended appeal was arguable
The court held the intended appeal was arguable without expressing concluded views on its merits.
The court noted that the intended appeal challenges the exercise of judicial discretion by the Deputy Registrar and Waweru, J. Weighing the circumstances, it found the intended appeal arguable, while deliberately abstaining from expressing concluded views that could prejudice the eventual hearing or embarrass the bench that would hear the appeal.
Whether the intended appeal would be rendered nugatory without a stay
The applicant failed to show the 1st respondent could not refund the taxed costs, as he is an MP with substantial remuneration and a practising advocate, and no evidence of impecuniosity was adduced.
The applicant claimed ignorance of the 1st respondent's sources of income, but the court found he was aware the 1st respondent is a member of parliament earning substantial remuneration and an advocate with a thriving Nairobi practice. No evidence or affidavit was sworn to show the 1st respondent is impecunious or unable to reimburse costs if the appeal succeeded. Having failed the second condition, the application had to be dismissed.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy two conditions: that the appeal or intended appeal is arguable, and that unless the order sought is granted, the success of the appeal will be rendered nugatory.
- An appellate court will be slow to interfere with the exercise of judicial discretion unless the decision is plainly wrong or was reached on a wrong principle.
Court orders
#- 1.Dismissal of the application for stay of execution under Rule 5(2)(b)
- 2.Costs of the application to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Election Petition No. 31 of 2008 (taxation reference ruling)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution/injunction pending appeal)
Relief refused
#Stay of execution of the taxed costs order pending the intended appeal
The applicant failed to demonstrate that the 1st respondent, an MP and practising advocate of means, would be unable to refund the costs if the appeal succeeded
Costs
Application dismissed with costs to the 1st respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is now well settled that in an application under rule 5(2) (b) of this Court's Rules, the applicant has the duty of showing not only that his appeal or intended appeal is arguable, or put differently, that it is not frivolous, but also that unless he is granted a stay or injunction as the case may be, the success of the appeal or intended appeal will be rendered nugatory.
The applicant having failed to satisfy the second condition, his application fails, an accordingly, it is dismissed with costs to the 1st respondent. Order accordingly.
an appellate court will be slow to interfere with the exercise of judicial discretion unless the decision is either plainly wrong, or that the court from which the appeal arises acted on wrong principle and as a result arrived at a wrong decision
Issues in the judgment
#The judgment states the appeal was struck out on 24th November 2008 for being filed outside 30 days, yet also records the taxation ruling of Waweru J as given on 11th June 2009 - the earlier-filed appeal could not have been struck out before the ruling it appealed against.
The judgment refers to 'Civil Appeal No. 16 of 2008' although the ruling appealed from was dated June 2009, and the header describes the application as one pending 'hearing and determination of an appeal' though the appeal was struck out.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "TITUS KIONDO MUYA V PETER NJOROGE BAIYA & 3 OTHERS [2009] KECA 95 (KLR)", Case Analysis (2009). Civil Application 182 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/95/eng@2009-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.