Il Nwesi Company Limited & 2 others v Wendy Martin [2011] KECA 299 (KLR)
The bottom line
#Kenya's Court of Appeal paused collection of a large injury award, but only if the losing parties first deposit half the money or guarantee the full amount.
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
- 2.Whether the success of the intended appeal would be rendered nugatory unless stay of execution is granted
- 3.Whether, in light of the overriding objective, a conditional stay should issue
Key legal issues
#Arguability of the intended appeal
The application of the common law test of liability under section 3 of the Occupiers' Liability Act, including who was an 'occupier' with immediate control and supervision, is not without difficulty, and the challenge to quantum of general damages is not frivolous; the arguability threshold is met.
The court held that ownership of the locus in quo is not the only consideration under section 3 of the Occupiers' Liability Act; the claimant must also show that the occupier had immediate control and supervision of the dangerous or defective premises. It was also unclear whether the cause of action was based purely on the Act or also on the tort of negligence. These uncertainties, coupled with the challenge on general damages, meant the intended appeal raised arguable, non-frivolous issues even on a solitary ground.
Nugatory aspect and balance of convenience
Whether an appeal would be rendered nugatory depends on the facts and circumstances of each case; the court weighed the enormity of the decretal amount, the respondent's health and citizenship, one applicant's death and the risk of prejudicial dealings with the applicants' properties.
Following Reliance Bank Ltd v Norlake Investments and Oraro and Rachier Advocates v Co-operative Bank of Kenya Ltd, the court considered the balance of convenience and conflicting claims. It reiterated that inability to refund a decretal sum is not the sole nugatory factor. The applicants' want of diligence, the decretal size, the respondent's fragile health and non-Kenyan citizenship, and the risk of prejudicial disposal of properties during execution all weighed in the exercise, justifying protection of both sides through a conditional stay.
Application of the overriding objective to stay applications
Sections 3A and 3B of the Appellate Jurisdiction Act confer latitude on the court, including granting appropriate interim relief, but do not displace established principles; the overriding objective supports a conditional rather than absolute stay.
The court invoked the overriding objective provisions introduced in July 2009, requiring the just, expeditious, proportionate and affordable resolution of matters. Drawing on City Chemist v Oriental Commercial Bank and Karuturi Networks v Daly & Figgis, it noted the jurisdiction is enhanced to drive the civil process and grant appropriate interim relief, while affirming that new thinking enriches rather than uproots established precedent. A conditional stay balanced the competing interests consistently with that objective.
Legal principles established
#- An applicant under rule 5(2)(b) must show the intended appeal is arguable (not frivolous) and that, unless stay is granted, the appeal will be rendered nugatory.
- In a decree for payment of money, the inability of a decree-holder to refund is not the only consideration in assessing nugatory aspect; the balance of convenience and the circumstances of each case matter.
- The overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act enriches, but does not uproot, established principles and precedent on the exercise of judicial discretion.
Court orders
#- 1.Stay of execution of the judgment and decree in H.C.C.C. No. 513 of 2003 granted on condition that the applicants jointly or severally deposit in court 50% of the decretal amount exclusive of taxed costs, or alternatively provide a Banker's guarantee from a reputable bank in Kenya covering the entire decretal amount
- 2.Compliance within 30 days, failing which the application shall stand dismissed with costs
- 3.If complied with, costs of the motion to abide the outcome of 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. 513 of 2003
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, read with sections 3A and 3B of the Appellate Jurisdiction Act (overriding objective)
Relief refused
#Unconditional stay of the judgment and decree pending the intended appeal
The court granted stay only on conditions, taking into account the applicants' want of diligence, the respondent's health and the risk of prejudice during execution
Costs
In default of compliance the application shall stand dismissed with costs; if the order is complied with, the costs of the motion shall abide the outcome of the intended appeal.
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.
The applicant ought to show, firstly, that the intended appeal is arguable even on a solitary issue, and it will be arguable if it is not frivolous. Secondly, and in addition, the applicant ought to show that unless the order sought is granted, the success of the intended appeal would be rendered nugatory.
The ownership of the locus in quo where the respondent sustained injuries is not the only consideration, as it is also necessary to show that the occupier had immediate control and supervision of the dangerous or defective premises which are complained about.
Accordingly, there shall be a stay of execution as prayed in the motion on condition that the applicants, jointly or severally deposit in court the sum in aggregate of 50% of the decretal amount exclusive of taxed costs or alternatively provide a Banker's guarantee from a reputable bank in Kenya to cover the entire decretal amount.
In either case the applicants shall comply with the order within 30 days of this order, and in default, the application shall stand dismissed with costs. If the order is complied with, the costs of the motion shall abide the outcome of the intended appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Il Nwesi Company Limited & 2 others v Wendy Martin [2011] KECA 299 (KLR)", Case Analysis (2011). Civil Application No. NAI. 291 of 2010 (UR. 203/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/299/eng@2011-04-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.