M E K M v G L M [2016] KECA 350 (KLR)
The bottom line
#Kenya's Court of Appeal paused a spousal maintenance order after finding the paying ex-spouse could not recover the money if her appeal succeeded.
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 applicant's intended appeal is arguable
- 2.Whether, unless the maintenance order is stayed, the appeal, if successful, would be rendered nugatory
Key legal issues
#Whether the appeal, if successful, would be rendered nugatory absent a stay
The court found the appeal arguable without dispute and held that the nugatory test was satisfied because the respondent had no means to refund maintenance sums paid if the appeal succeeded.
The respondent, by his own admission, was not a man of means and would be unable to refund maintenance payments should the appeal succeed. The applicant had taken a bank loan to meet the decree and stood to lose that money. Restoring the position on appeal would therefore be impossible, rendering the appeal nugatory.
Legal principles established
#- An applicant for stay of execution pending appeal must satisfy the court that the appeal is arguable and that, unless stay is granted, the appeal if successful will be rendered nugatory; nugatory value depends on the peculiar circumstances of each case.
Court orders
#- 1.Stay of the High Court order requiring the applicant to pay the respondent Kshs.20,000/= per month as maintenance, pending the hearing and determination of the applicant's appeal against the judgment delivered on 19/3/2015
- 2.Each party to bear its own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- Divorce Petition No. 1 of 2000
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal); the judgment does not state the provision expressly
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.
It is now a well settled practice that in an application of this nature an applicant has to satisfy the court that the appeal or intended appeal is arguable and that unless the order of stay of execution is granted the appeal or intended appeal, if successful, shall be rendered nugatory.
Whether or not an appeal would be rendered nugatory, if successful, would ultimately depend on the peculiar circumstances of each case.
we allow the applicant’s application dated 10th August, 2015, with the result that the High Court order requiring the applicant to pay to the respondent Kshs.20,000/= per month for maintenance is stayed, pending the hearing and determination of the applicant’s appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M E K M v G L M [2016] KECA 350 (KLR)", Case Analysis (2016). Civil Application No. 40 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/350/eng@2016-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.