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Court of AppealDismissedCivil Application No. Nai 78 of 2014 (UR 64/2014)

Swaleh Breki Islam & another v Winfred Mutheu Kiamuko & another [2015] KECA 820 (KLR)

Court of Appeal
13 February 2015
RNR.N. NambuyePKP.O. KiageSKS. Gatembu Kairu
1,959 words in judgment
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The bottom line

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The Court of Appeal refused to halt enforcement of a judgment because the applicants proved their appeal was arguable but failed to show it would be wasted.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Nambuye, Kiage and Gatembu Kairu JJA) on a notice of motion by Swaleh Breki Islam and Mash Bus Services Limited seeking stay of execution, under rule 5(2)(b) of the Court of Appeal Rules, of the High Court of Kenya at Machakos judgment of Dulu, J dated 7 June 2012. That judgment, following a consent judgment apportioning liability at 80% against the applicants and 20% against the respondents, awarded Kshs. 7,363,286 inclusive of damages under the Fatal Accidents Act and Law Reform Act, applying a one-third dependency ratio. The applicants had already been refused an unconditional stay by the High Court (B. Thuranira Jaden, J, 12 March 2014), which ordered payment of two-thirds of the decretal sum and security for the remainder; no appeal was preferred against that ruling. The applicants argued the intended appeal was arguable because the trial judge failed to reflect the 20% contributory negligence against all heads of damages, and that the respondents' ability to refund was unproven. The respondents conceded non-apportionment but contended the entire judgment could not be overturned and that the applicants had not explained their failure to comply with the conditional stay. The court held the intended appeal was arguable, a single arguable point sufficing, and that review was no bar since a litigant may elect appeal or review. However, because liability was settled by consent, the respondents would retain part of the decree, and the applicants offered no explanation for non-compliance with the conditional stay. Failing the nugatory-ness ingredient, the application was dismissed with costs to the respondents. The decision below was not disturbed; the court simply withheld discretionary relief.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the appeal or intended appeal will be rendered nugatory if stay of execution is not granted

Key legal issues

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01

Arguability of the intended appeal

Holding

The trial judge's failure to reflect the 20% contributory negligence against all heads of damages rendered the intended appeal arguable

Reasoning

The applicants contended, and the respondents conceded, that the consent judgment apportioned liability at 80/20 but Dulu, J did not reflect that apportionment against the damages awarded under each head. That single arguable point sufficed, and the availability of review did not bar an appeal since a litigant may elect either route.

p. 3
02

Whether the appeal would be rendered nugatory absent stay

Holding

The applicants failed to demonstrate nugatory-ness; the respondents would retain something of the decree, and the applicants gave no explanation for their failure to comply with the High Court's conditional stay order

Reasoning

Liability was apportioned by consent with the applicants bearing the greater blame, so the entire judgment could not be overturned and the respondents would end up with part of the decree. Further, the applicants did not explain why they could not comply with the High Court's conditional stay, depriving the court of guidance on alternative conditions.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both the arguability and the nugatory-ness ingredients; satisfaction of only one is insufficient
  • An arguable appeal need not raise multiple points; a single arguable point is sufficient
  • Jurisdiction under rule 5(2)(b) arises from a valid notice of appeal having been lodged

Court orders

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  1. 1.The applicants' application dated 10th April 2014 and lodged on 14th April 2014 is dismissed
  2. 2.The respondents are awarded the costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RN
majority
PK
majority
SK
majority
On appeal from
High Court of Kenya at Machakos
Machakos HCCC No. 130 of 2009
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules and section 3(3) of the Appellate Jurisdiction Act

Relief refused

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Stay of execution pending the hearing and determination of the appeal

The applicants established arguability but failed to demonstrate that the appeal would be rendered nugatory; both ingredients must be satisfied

p. 4

Costs

The respondent will have costs of the application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Since the rule is that both ingredients must be satisfied before we can grant the reprieve, we have no alternative but to fold our arms and withhold the relief sought.
p. 4Twin requirements under rule 5(2)(b)
in order to satisfy the ingredient on argubility, the appeal or intended appeal need not raise a multiplicity or any number of points. A single arguable point is sufficient.
p. 3Standard of arguability
In the result, we dismiss the applicants’ application dated 10 2014 and lodged herein on the 14
p. 4Final orders - dismissal of the application
The respondent will have costs of the application.
p. 4Costs order

Issues in the judgment

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minor

The judgment records the High Court ruling date as '122th March, 2014' in the header but as '12th day of March, 2014' in the body; the latter appears correct

minor

The final orders paragraph is truncated in the copy supplied, cutting off the date of the application and lodgement details mid-sentence

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, "Swaleh Breki Islam & another v Winfred Mutheu Kiamuko & another [2015] KECA 820 (KLR)", Case Analysis (2015). Civil Application No. Nai 78 of 2014 (UR 64/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/820/eng@2015-02-13

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