Dalbit Petroleum Limited v Peris Nyambura Kimani [2016] KECA 315 (KLR)
The bottom line
#The Court of Appeal paused collection of a Shs.3.6 million award because the winner couldn't prove she could repay it if the appeal succeeded.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable; the existence of one arguable point suffices, and the court does not inquire into whether the grounds will succeed
The court considered the rival arguments and the draft memorandum of appeal, identifying the question whether the trial judge exceeded her jurisdiction by determining issues not pleaded and the contest over the general damages award. Without inquiring into merits, it found the issues arguable, noting that determining success is the preserve of the trial court and that a single arguable point satisfies the limb.
Nugatory aspect
The appeal would be rendered nugatory absent stay, since the respondent gave no proof of ability to refund the decretal sum once the applicant raised fears
The applicant contended the respondent had no known assets and could not refund the Shs.3.6 million awarded. The respondent did not address her means in her replying affidavit or on the hearing. The court held that once the applicant raised fears on refundability, the burden lay on the respondent to rebut them, and the balance tilted in the applicant's favour on the balance of convenience.
Effect of rule 41 on the Court's jurisdiction
Rule 41 does not bar a rule 5(2)(b) application made to the Court of Appeal in the first instance
The respondent argued that the applicant should first apply to the High Court under rule 41. The court held that the substantive rule on stay is rule 5(2)(b), on which the application was founded, and that rule 41 cannot override it, adopting the analogy of A.B Shah JA in Gabriel Kigi & 6 others v Kimotho Mwaura & another.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both the arguability limb and the nugatory limb; even one arguable point suffices for the arguability limb
- Where the applicant raises fears on the respondent's ability to refund the decretal sum, the burden shifts to the respondent to rebut and assert her means and capacity
- Rule 5(2)(b) as the substantive stay rule cannot be overridden by rule 41; a rule 5(2)(b) application may be made to the Court of Appeal in the first instance
Court orders
#- 1.The applicant's Notice of Motion is allowed in terms of prayers 3 and 4 (stay of execution and deposit of the decretal amount in an interest-earning joint account), prayers 1 and 2 having been spent
- 2.Costs shall be costs in the appeal
- On appeal from
- Employment and Labour Relations Court at Nairobi
- ELRC Petition No. 63 of 2013
- Jurisdiction invoked
- Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dalbit Petroleum Limited v Peris Nyambura Kimani [2016] KECA 315 (KLR)", Case Analysis (2016). Civil Application No. NAI 76 of 2016 (UR 59/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/315/eng@2016-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.