Nelson Mutai T/A Kandie & another v Benson Mbuvi Kathenge [2014] KECA 599 (KLR)
The bottom line
#The Court of Appeal refused to stop execution of a ruling against an advocate who released client deposit money without the buyer's consent, because his appeal was weak and he proved no risk of losing the money.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable under the first limb of Rule 5(2)(b)
The court was not satisfied the appeal is arguable; the applicant, as stakeholder, released the bulk of the deposit to the vendor without the consent of or notice to the purchaser's advocates, rendering the intended appeal doubtful
The court declined to make a definite finding on arguability but held that an applicant must satisfy it before the discretion is exercised. Here the applicant received KShs.3,250,000 as the vendor's advocate and stakeholder and released most of it without consulting the respondent's advocates. On that material the court expressed doubt, and since it cannot be satisfied while in doubt, the first limb failed.
Whether the appeal would be rendered nugatory if stay is not granted (second limb)
The second limb failed; beyond a bare assertion, no material was placed before the court to doubt the respondent's ability to repay the amount if the appeal succeeded
The applicant's assertion that it may be difficult to recoup the amount was unsupported. The money had originated from the respondent, who would be paying back only what he had first paid. Indeed, the record showed it was the respondent who had difficulty recovering the money from the applicant. Both limbs must be satisfied, citing Githunguri v Jimba Credit Corp Ltd and Magnate Ventures Ltd v Eng Kenya Ltd.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both limbs - an arguable appeal and that the appeal would be rendered nugatory if stay is not granted - and the court cannot exercise its discretion if in doubt on arguability
- An advocate who receives money as a stakeholder cannot release it to one party without the consent of, or notice to, the other party's advocates and still claim an arguable appeal
- A bare assertion that the decretal amount may be difficult to recoup is insufficient to establish the nugatory limb; the applicant must give material or reason to doubt the respondent's ability to refund
Court orders
#- 1.The motion dated 25th November 2010 seeking stay of execution pending appeal is dismissed
- 2.No orders as to costs
- On appeal from
- High Court of Kenya at Milimani Commercial Court, Nairobi
- HCCC No. 189 of 2010
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nelson Mutai T/A Kandie & another v Benson Mbuvi Kathenge [2014] KECA 599 (KLR)", Case Analysis (2014). Civil Application NAI.272 of 2010 (UR 191/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/599/eng@2014-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.