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Court of AppealDismissedCivil Application No. NAI. 87 of 2010 (UR. 63/2010)· [2011] KECA 97 (KLR)

City Council of Nairobi v Bespoke Insurance Brokers [2011] KECA 97 (KLR)

Court of Appeal of Kenya
21 October 2011
EOE.O. O'KubasuEGE.M. GithinjiJOJ.W. Onyango Otieno
1,611 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled you cannot get a stay of execution against a court order that merely dismisses your application — there is simply nothing to stay.

What this practically means

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Executive summary

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The City Council of Nairobi applied by Notice of Motion under Rule 5(2)(b) of the Court of Appeal Rules for a stay of execution of a ruling of the High Court (Khaminwa, J.) delivered on 16th March 2009 in H.C.C.C. No. 590 of 2005, which dismissed the Council's application to set aside ex parte judgment entered against it on 21st October 2008 in favour of Bespoke Insurance Brokers for Kshs. 27,914,769.10 plus interest and taxed costs. The Council argued that it had an arguable appeal (Civil Appeal No. 117 of 2009), that there had been a mix-up in hearing dates, and that payment of the colossal sum would cripple its operations. The respondent opposed, citing the applicant's delay of over a year in filing the application, the fact that the Council sought to stay a dismissal order, and that the principal sum had already been paid leaving only interest outstanding. The Court of Appeal (O'Kubasu, Githinji and Onyango Otieno, JJ.A.) applied the twin criteria from Bob Morgan Systems Ltd v Jones and, following Western College of Arts & Applied Sciences v Oranga, held that a bare dismissal order directs no party to do, refrain from doing, or pay anything, leaving nothing capable of being stayed. The principal amount having been settled save for interest, the court dismissed the application with costs on 21st October 2011. The High Court ruling itself was not disturbed by this interlocutory decision.

Key legal issues

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01

Whether a stay of execution can issue in respect of a dismissal order

Holding

No; a dismissal order that directs no party to do, refrain from doing, or pay anything leaves nothing capable of execution or stay.

Reasoning

The order of 16th March 2009 dismissed the applicant's application to set aside ex parte judgment. The learned judge had considered the defence and found it unmeritorious, and did not order any party to do anything or to stop doing anything. Applying Western College of Arts & Applied Sciences v Oranga, the court held there was nothing arising from that order for the Court of Appeal to enforce or restrain in a stay application.

p. 3
02

Whether the Rule 5(2)(b) twin criteria were satisfied

Holding

The application failed the test; additionally the principal sum had been settled, leaving only interest in dispute.

Reasoning

The court reaffirmed the settled twin criteria for stay under Rule 5(2)(b) as stated in Bob Morgan Systems Ltd v Jones. On the facts, the amount in dispute had been settled save interest on the principal sum, and there being nothing to stay, the application was without merit and was dismissed with costs.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both that the appeal or intended appeal is arguable and that its success would be rendered nugatory unless the stay or injunction is granted.
  • There is nothing to stay where the order appealed against merely dismisses an application and does not order any party to do anything, refrain from doing anything, or pay any sum.

Court orders

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  1. 1.The application for stay of execution pending appeal be and is hereby dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder IXB rule 8

Cases cited (3)

  • Bob Morgan Systems Ltd & Another v Jones
    [2004] 1 KLR 194
  • Western College of Arts & Applied Sciences v Oranga & Others
    [1974] KLR 63
  • Wilson v Church
On appeal from
High Court of Kenya at Nairobi, Commercial & Tax Division – Milimani
H.C.C.C. No. 590 of 2005
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "City Council of Nairobi v Bespoke Insurance Brokers [2011] KECA 97 (KLR)", Case Analysis (2011). Civil Application No. NAI. 87 of 2010 (UR. 63/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/97/eng@2011-10-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.