TITUS KIONDO MUYA v PETER NJOROGE BAIYA & 2 others [2009] KECA 444 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a bid to delay paying KShs 1 million in legal costs because the winner could easily afford to refund the money 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 is arguable
- 2.Whether, unless a stay of execution is granted, the success of the intended appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable
The court found the intended appeal arguable without expressing concluded views on its merits.
The applicant intended to challenge the exercise of judicial discretion by the Deputy Registrar and Waweru, J on the taxation reference. Weighing the facts and circumstances, and mindful that it should not prejudice the eventual appellate bench, the court was prepared to hold the intended appeal arguable and moved to consider the nugatory aspect.
Whether the intended appeal would be rendered nugatory absent a stay
The applicant failed to establish nugatorydness; the 1st respondent's disclosed sources of income (parliamentary salary and legal practice) made refund possible.
The applicant claimed ignorance of the 1st respondent's sources of income, but the court found this not candid: the 1st respondent was a member of Parliament receiving substantial remuneration and an advocate with a thriving Nairobi practice. The applicant adduced no evidence that the 1st respondent was impecunious or unable to refund the costs if the appeal succeeded.
Cumulative nature of the Rule 5(2)(b) conditions
Both conditions must be satisfied; failure on either dooms the application.
The court reiterated that an applicant must show the appeal is arguable and, in addition, that the appeal's success would be rendered nugatory absent the order. Having satisfied the first limb but failed the second, the applicant's application necessarily failed. This restatement binds lower courts and future Rule 5(2)(b) applicants.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy two cumulative conditions: that the appeal is arguable and that, absent the order sought, the appeal's success 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 the court below acted on a wrong principle.
- A party alleging that the opposing party cannot refund monies if paid over bears the burden of demonstrating that inability.
Court orders
#- 1.Application under Rule 5(2)(b) dismissed with costs to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Election Petition No. 31 of 2008
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the taxed costs order pending the intended appeal
The applicant failed to satisfy the second condition of Rule 5(2)(b), namely that the appeal would be rendered nugatory absent a stay, as he did not show the 1st respondent would be unable to refund the costs
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.
This court has repeatedly stated that 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
The applicant having failed to satisfy the second condition, his application fails, an accordingly, it is dismissed with costs to the 1st respondent.
We are not unmindful of the fact that we should abstain from expressing concluded views on the merits of the intended appeal as doing so will either prejudice one of the parties in the appeal or embarrass the bench which will eventually hear the appeal.
Issues in the judgment
#Internal chronological inconsistency: the ruling of Waweru, J is stated as given on 11th June, 2009, yet the applicant's appeal is described as Civil Appeal No. 16 of 2008 and as having been struck out on 24th November, 2008 for being filed outside the 30-day period - dates which predate the decision appealed from.
Typographical/typographical inconsistency in the heading vs body: the judgment heading describes the application as for stay of execution 'pending hearing and determination of an appeal', but the body indicates the appeal has been struck out and only an intended appeal exists.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "TITUS KIONDO MUYA v PETER NJOROGE BAIYA & 2 others [2009] KECA 444 (KLR)", Case Analysis (2009). Civil Application 182 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/444/eng@2009-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.