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Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. NAI. 118 of 2012· [2013] KECA 477 (KLR)

Hellen Makone v Brenda Michieka

Court of Appeal
12 July 2013
1,396 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a civil suit because the applicant showed neither an arguable appeal nor that the appeal would fail without a stay.

What this practically means

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Executive summary

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This was an interlocutory application before the Court of Appeal at Nairobi, in which Hellen Makone sought an injunction and a stay of further proceedings in High Court Civil Suit No. 452 of 2011 pending an intended appeal against a Ruling of Lady Justice Khaminwa delivered on 15th March 2012, which struck out the Applicant's defence as raising no triable issues and filed merely to delay the suit. The application was brought under Rules 47(1) and 5(2)(b) of the Court of Appeal Rules, with reliance on Sections 3A and 3B of the Appellate Jurisdiction Act. The Applicant, sister to the Respondent, contended she was never served with the plaint or summons, that no sale agreement was executed, and that she held no power of attorney, and thus had an arguable appeal that would be rendered nugatory if the orders were refused. The Respondent maintained there was a regular interlocutory judgment entered in default of appearance and defence and that service was never effectively challenged before the High Court. The Court applied the settled twin principles under Rule 5(2)(b): the applicant must show an arguable appeal and that the appeal's success would be rendered nugatory absent the orders, satisfying both limbs. The Court found that the Applicant had not effectively challenged the evidence of service, offered no triable issues the High Court judge overlooked, and demonstrated nothing to establish the nugatory limb. The application was dismissed with costs.

Key legal issues

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01

Whether the Applicant demonstrated an arguable appeal

Holding

The Court was not persuaded the appeal was arguable. The Applicant did not effectively challenge the evidence of service and made no attempt to show what triable issues in her defence the High Court judge failed to consider.

Reasoning

The interlocutory judgment was entered in default of appearance and defence, which was not contested. Although the Applicant claimed she was not served, she did not challenge the evidence of service presented before the High Court - for example by examining the process server on oath or showing she was not where service was alleged. The Court held the High Court judge could not be faulted for ruling the evidence of service unchallenged, and the Applicant pointed to no triable issue overlooked.

p. 3
02

Whether the intended appeal would be rendered nugatory absent the orders sought

Holding

The nugatory limb was also not satisfied; in any event, failing the arguability limb, satisfaction of the nugatory limb alone would not avail the Applicant.

Reasoning

The Court reiterated that both limbs of the Rule 5(2)(b) test must be demonstrated. Even assuming arguability, nothing was placed before the Court to show the intended appeal would be rendered nugatory if the injunction and stay were refused. The Court was careful not to make final pronouncements on the quality of the intended appeal at the interlocutory stage, but found the requisite threshold unmet.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both limbs - an arguable appeal or intended appeal, and that the appeal will be rendered nugatory if stay or injunction is not granted; satisfying only one limb does not avail the applicant.
  • An arguable appeal need not necessarily succeed; it is one that deserves the court's consideration.
  • The oxygen principle under Sections 3A and 3B of the Appellate Jurisdiction Act is not a panacea for all ills; a foundation for its application must be properly laid.

Court orders

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  1. 1.The Notice of Motion filed on 12th January 2012 is dismissed with costs
On appeal from
High Court
HCCS No. 452 of 2011
Jurisdiction invoked
Rules 47(1) and 5(2)(b) of the Court of Appeal Rules, and Sections 3A and 3B of the Appellate Jurisdiction Act (as invoked by the applicant)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Hellen Makone v Brenda Michieka", Case Analysis (2013). Civil Application No. NAI. 118 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/477/eng@2013-07-12

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