The Law Society Of Kenya v Muchemi & 32 others (Civil Application 11 of 2015) [2015] KECA 316 (KLR)

The court restated the crystallised case law: the applicant must first show the appeal is arguable, meaning it raises a bona fide issue worthy of consideration, not one that must succeed. Even one arguable point suffices. Secondly, the applicant bears the legal obligation to prove the appeal would be rendered nugatory if stay is refused. Both limbs must be demonstrated before relief can be granted under rule 5(2)(b).

The court examined the three orders issued by Ngugi, J. and found none amounted to a dismissal or striking-out order (a negative order incapable of being stayed). All three fell into the category of positive orders requiring the applicant to do something positive, hence they were capable of being stayed, which supported the grant of relief under rule 5(2)(b).

The court perused the draft memorandum of appeal and identified arguable issues including the trial judge's alleged failure to appraise the totality of facts, alleged absence of constitutional rights violation, alleged failure to consider public interest, alleged contradictory orders, and alleged bias. One arguable point suffices, and here several were identified, so the appeal was not frivolous.

The applicant alleged financial loss of over Kshs. 23,000,000 paid to consultants and the risk of breach-of-contract suits. The respondents countered that the orders had been partially performed and protected constitutional rights. Balancing the rival claims, the court allowed prayer (1) on terms that the monies due towards the Arbitration Centre be deposited in an interest-earning account in joint names of counsel within thirty days.