Nation Media Group Ltd & another v Chirau Ali Mwakwere [2010] KECA 312 (KLR)
The bottom line
#Kenya's Court of Appeal stopped enforcement of a Shs. 10 million defamation award against Nation Media Group, requiring a bank guarantee to secure the money pending appeal.
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 is arguable and not frivolous
- 2.Whether the success of the intended appeal would be rendered nugatory if execution is not stayed
- 3.Whether the balance of convenience favours the applicants and on what conditions a stay should issue
Key legal issues
#Arguability of the intended appeal
The intended appeal, challenging identification of the respondent as the person referred to in the article, proof of innuendo and excessive damages, was arguable.
The court considered the grounds in the draft memorandum of appeal, including absence of evidence of identification, lack of proof of innuendo and excessive general damages, and was satisfied without deciding that the appeal was arguable and not frivolous.
Whether the appeal would be rendered nugatory absent a stay
Financial ability to refund is not invariably decisive; on these facts, the possibility that the appellate court may decline or considerably reduce the damages award, plus imponderables in selling the respondent's land, meant the balance of convenience favoured the applicants.
Although the respondent had assets sufficient to repay the Shs. 10,000,000 decree, the court relied on Reliance Bank v Norlake to hold that refundability is not decisive. The draft memorandum sought interference with the damages award; if the award were set aside or reduced, recovery from the respondent through sale of his land would be slow and uncertain, inconveniencing the applicants.
Conditions attaching to the stay
The stay was granted conditional on the applicants providing a bank guarantee for the full decretal sum within 14 days, applying the principle of proportionality.
The applicants offered security by way of a bank guarantee as a sign of good faith. The court held that proportionality and the need for a level playing ground required the applicants to secure the decretal sum, allowing the existing guarantee to be extended to accord with the order.
Legal principles established
#- In applications for stay pending appeal, the respondent's financial means to refund a decretal sum paid over is not invariably decisive; nugatory-ness must be assessed case by case.
- A stay may properly be granted conditional on the applicant providing a bank guarantee securing the decretal sum, reflecting proportionality and a level playing field.
Court orders
#- 1.Stay of execution of the judgment and decree of the High Court pending determination of the intended appeal
- 2.Applicants to provide a Bank Guarantee for Shs. 10,000,000 being the total judgment sum within 14 days, with the existing Bank Guarantee extended to accord with the order
- 3.Costs of the application to be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1329 of 2003
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
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.
We do not understand the position to be that in a decree for the payment of money, for example, the only thing that would render success of an appeal nugatory is the inability of the other side to refund the decretal sum if it has been paid over to it.
the fact that a respondent in an application of this kind has the financial means to refund the decretal sum should the appeal succeed is not invariably decisive
The balance of convenience is definitely in favour of the applicants, we would think so.
Accordingly, we allow the application and grant an order staying the execution of the decree pending the determination of the intended appeal on condition that the applicants do provide a Bank Guarantee for Shs. 10,000,000 being the total judgment sum.
The costs of this application shall be in the intended appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nation Media Group Ltd & another v Chirau Ali Mwakwere [2010] KECA 312 (KLR)", Case Analysis (2010). Civil Application No. 353 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/312/eng@2010-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.