Royal Media Services Limited & another v Macharia Waiguru [2015] KECA 689 (KLR)
The bottom line
#The Court of Appeal stopped a defamation damages case against Royal Media Services, ruling that a winnable appeal could be wasted if the High Court case continued first.
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 intended appeal, if successful, will be rendered nugatory if a stay of proceedings is not granted
Key legal issues
#The two-limb test for stay of proceedings under Rule 5(2)(b)
An applicant must demonstrate an arguable appeal and that, if successful, the appeal will be rendered nugatory absent a stay.
The court restated the settled principles guiding Rule 5(2)(b) applications: the jurisdiction is original and discretionary, guided by the twin tests of arguability and nugatory-ness. Both limbs must be satisfied before the discretion is exercised in the applicant's favour.
Arguability of the intended appeal
The questions whether default judgment could be entered for a prayer for 'any other relief' under Order 10 Rule 6, and whether the Chairman's affidavit should have been considered under Order 19 Rule 3, were arguable.
The court declined to go into the merits of the intended appeal but found the grounds raised - the propriety of default judgment on a claim for general and exemplary damages including 'any other relief', and the rejection of SK Macharia's affidavit as hearsay - to be arguable and not frivolous, satisfying the first limb.
Nugatory-ness as a question of fact
Whether an appeal will be rendered nugatory is a question of fact, not law, dependent on the peculiar circumstances of each case with no limit on the factors considered.
Relying on Reliance Bank Ltd v Norlake Investments Ltd, the court held that the assessment is fact-specific. Here, the risk that the High Court would assess and order payment of colossal damages that the respondent, an advocate with virtually no legal business, could not refund, persuaded the court the appeal would be rendered nugatory.
Exercise of discretion under Rule 5(2)(b)
Both limbs having been satisfied, this was a deserving case for the exercise of the court's discretion in favour of a stay of proceedings.
Having found the appeal arguable and that dismissal of the application would render the intended appeal nugatory, the court concluded the application deserved the exercise of its discretion and allowed it, with costs to abide the outcome of the appeal.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both the arguability of the appeal and that its success will be rendered nugatory without the orders sought.
- An arguable appeal need not necessarily succeed; one arguable point suffices, and nugatory-ness is a question of fact assessed on the circumstances of each case.
Court orders
#- 1.Stay of further proceedings in High Court Civil Case No. 123 of 2010 pending the lodging, hearing and determination of the intended appeal
- 2.Costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 123 of 2010
- Jurisdiction invoked
- Sections 3A & 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules
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 law is settled regarding applications brought under Rule 5 (2) (b), that an applicant must satisfy the court that he has an arguable appeal and that his intended appeal, if successful, will be rendered nugatory if the orders sought are not granted.
Whether or not the success of an appeal or intended appeal will be rendered nugatory is a question of fact not law. Each case must therefore be considered on its own peculiar facts and circumstances and there is no limit to the number of factors that may be considered
We have come to the conclusion that this is a deserving case for exercise of our discretion under Rule 5 (2) (b) of the Rules of this Court. Accordingly, we allow the application. Costs of the application to abide the outcome of the appeal.
Issues in the judgment
#The judgment dates the impugned High Court ruling inconsistently, describing it in the heading as dated 23rd May, 2011 but in the notice of motion as dated 23rd May, 2010.
The case name of the Sammy Mutua Makove authority is garbled in the judgment text, breaking across lines in a way that mangles the party names.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kedong Ranch Ltd v Kingsholme Ltd & another (Civil Appeal (Application) E093 of 2026) [2026] KECA 1373 (KLR)[2026] KECA 1373 (KLR)10 Jul 2026followed
- Elior v Njoroge & 8 others (Civil Appeal (Application) E003 of 2026) [2026] KECA 1209 (KLR)[2026] KECA 1209 (KLR)26 Jun 2026applied
Cite this brief
#Cite this brief
Caselaw, "Royal Media Services Limited & another v Macharia Waiguru [2015] KECA 689 (KLR)", Case Analysis (2015). Civil Application No. NAI 136 of 2011 (UR 89/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/689/eng@2015-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.