National Newspapers Limited & another v Fibi Munene [2009] KECA 385 (KLR)
The bottom line
#Kenya's Court of Appeal stopped the Shs.7 million payout, but only if the newspaper deposits the money in a joint bank account within the set deadline.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The court found the intended appeal arguable on the grounds that the special damages claim for 29 years' lost service was neither pleaded nor proved, the Shs.7 million general damages award was excessive, and the defence on record was not considered.
Counsel for the Nation submitted three arguable grounds: special damages for 29 years of lost service required specific pleading, particularisation and proof; the general damages award of Shs.7 million was excessive; and the judgment ignored the defence on record. Respondent's counsel did not seriously contest arguability, so the first limb of the rule 5(2)(b) test was satisfied.
Whether the appeal would be rendered nugatory absent stay of proceedings
No. The court declined to stay further proceedings in the superior court because a successful appeal would render those proceedings vacuous and costs could compensate.
Relying on Kenya Commercial Bank v Benjoh Amalgamated, Silverstein v Chesoni and Johnsons Wax, the court held that hearing the motion for salary arrears in the High Court might prove unnecessary if the appeal succeeds, but that waste is remediable by costs and does not render the appeal worthless or nugatory.
Whether the appeal would be rendered nugatory absent stay of execution
Yes, in part. The court granted stay of execution of the Shs.7 million decree conditional on the applicant depositing that sum in a joint interest-earning account.
The aggregate recovery sought exceeded Shs.22 million; the respondent gave no evidence of ability to repay such a sum, and her age and lack of income for 29 years militated against recoverability. Following the line of Oraro & Rachier, Clarkson and Trust Bank v Investech, the court qualified the usual money-decree rule and granted limited protection by way of conditional stay of execution.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin principles that the intended appeal is arguable and that, if successful, it would be rendered nugatory unless stay is granted.
- Where a judgment debtor is adjudged to settle a substantial money decree, the court may qualify the usual principle that a money decree need not be stayed if the respondent can repay, considering undue hardship and the applicant's right of appeal.
- Stay of further proceedings will be refused where continuation of proceedings in the superior court would not render the intended appeal nugatory, since a successful appeal would render those proceedings vacuous and costs can remedy any waste.
Court orders
#- 1.Declined to grant the order for stay of further proceedings before the superior court
- 2.Granted an order for stay of execution as sought in prayer (2) of the notice of motion
- 3.Ordered the applicant to deposit Shs.7 million in an interest-earning bank account in the joint names of the advocates for both parties
- 4.Ordered that the deposit be made within 30 days of the ruling, on or before 22nd March, 2009
- 5.Ordered that in default of compliance the application shall stand dismissed with costs without further application
- 6.Ordered that if there is compliance, the costs of the application shall be in the intended appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 2636 of 1979
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Newspapers Limited & another v Fibi Munene [2009] KECA 385 (KLR)", Case Analysis (2009). Civil Appli 19 of 2008 (UR/13/2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/385/eng@2009-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.