Harris Horn Junior & another v Vijay Morjaria [2009] KECA 317 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a Kshs 22.5 million judgment, holding that money decrees can be repaid, so wealthy parties cannot claim an appeal would be ruined.
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 intended appeal (Nakuru Civil Appeal No. 223 of 2007) is arguable
- 2.Whether the appeal, if successful, would be rendered nugatory unless a stay of execution and stay of proceedings are granted
Key legal issues
#Arguability of the intended appeal
The Court was satisfied that the intended appeal raised arguable grounds on both law and fact, including whether a dismissal order by the superior court could be stayed.
Counsel for the applicants argued that the plaint disclosed no cause of action, that the transaction was illegal and that the suit was a nullity, relying on multiple authorities. The respondent countered that only an exercise of judicial discretion was being challenged without any demonstration that it was wrongly exercised. On considering the memorandum of appeal, the ruling and submissions, the Court found the grounds arguable on both law and fact, though it declined to decide an unraised point on whether a dismissal order could be stayed.
Whether the appeal would be rendered nugatory absent a stay
The Court held that the appeal would not be rendered nugatory because the decree was for payment of money and both parties were wealthy, so repayment was possible if the appeal succeeded.
The Court reasoned that the orders in issue were essentially for payment of money. The applicants were described as wealthy landowners with large tracts of land, and the respondent had demonstrated wealth through the large sums he transacted. Since the respondent could repay the decretal sum if the appeal ultimately succeeded, the nugatory-ness test failed and the discretionary application had to be dismissed with costs.
Legal principles established
#- An applicant under rule 5(2)(b) of the Court of Appeal Rules must demonstrate, first, that the appeal or intended appeal is arguable (not frivolous) and, second, that unless the stay is granted the appeal will be rendered nugatory.
- Where the decree sought to be stayed is for payment of money and the respondent is shown to be a person of means capable of repaying the decretal sum should the appeal succeed, the appeal will not be rendered nugatory and a stay will be refused.
Court orders
#- 1.The application for stay of execution of the decree and stay of further proceedings in Nakuru HCCC No. 285 of 2004 is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- HCCC No. 285 of 2004
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (discretionary jurisdiction to grant stay of execution and stay of proceedings pending appeal)
Relief refused
#Stay of execution of the decree made on 16th June 2006 pending the hearing and determination of Nakuru Civil Appeal No. 223 of 2007
The appeal would not be rendered nugatory without a stay since the decretal sum is capable of repayment - both parties are persons of means
Stay of further proceedings in Nakuru HCCC No. 285 of 2004 pending disposal of the appeal
The application failed as a whole because the nugatory-ness threshold was not met
Costs
The application was dismissed with costs to the 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 established that for an application under Rule 5(2)(b) of the Court’s Rules to succeed the applicant must satisfy the Court that:- (i) The appeal or intended appeal is an arguable one, that is, that it is not a frivolous appeal; And that (ii) Unless the order of stay of execution is granted, the intended appeal or appeal, if it eventually success, will be rendered nugatory.
Again, we would point out to both counsel, that it is an arguable point as to whether we could stay a dismissal order by the superior court. However, as the matter was not raised before us we will not deal with it at this stage.
Accordingly in the exercise of our discretion and for the aforegoing reasons this application fails and is ordered dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Harris Horn Junior & another v Vijay Morjaria [2009] KECA 317 (KLR)", Case Analysis (2009). Civil Appli 77 of 2008 (UR 46/09). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/317/eng@2009-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.