Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. 93 of 2017· [2017] KECA 18 (KLR)

Jubilee Hauliers Ltd & 2 others v Brian Muchiri Waihenya [2017] KECA 18 (KLR)

Court of Appeal
27 September 2017
GKG. B. M. KariukiFSF. SichaleSKS. ole Kantai
1,381 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal refused to pause a Kshs 28.9 million judgment because the hauliers failed to show their appeal had real merit.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal (Kariuki, Sichale and Kantai, JJ.A) on a Notice of Motion dated 3rd August 2017 brought under Rule 5(2)(b) of the Court of Appeal Rules by Jubilee Hauliers Ltd, Vapul Patel and David Kimosbei Kemei. They sought a stay of execution of the judgment of Mulwa, J. in Nakuru HCCC No. 34 of 2014 delivered on 4th May 2017, in which they were held 100% liable for a road accident and the respondent awarded Kshs 28,925,844, together with a stay of the judge's ruling of 27th July 2017 directing payment of Kshs 10 million and deposit of the balance in court within 30 days. The applicants contended they had an arguable appeal on liability (asserting the accident was caused by the driver of vehicle KAU 325 B, who died, and that police absolved them) and on quantum (a colossal award and special damages unsupported by receipts), and that execution would render the appeal nugatory. The respondent countered that there was no arguable appeal and that he could refund any money paid. The court applied the twin-principle test from Stanley Kangethe Kinyanjui v Tony Keter. It declined to make definitive findings but noted the applicants called no witness to rebut the respondent's testimony and that the record did not show police absolution. It held the applicants failed to demonstrate an arguable appeal and, having failed the first limb, did not consider nugatory-ness. The motion was dismissed with costs.

Key legal issues

#
01

Twin principles for relief under Rule 5(2)(b)

Holding

An applicant must establish both an arguable appeal and that the appeal will be rendered nugatory unless stay is granted; failing the first limb, the application fails.

Reasoning

The court restated the settled jurisprudence from Stanley Kangethe Kinyanjui v Tony Keter on Rule 5(2)(b) applications. It considered the applicants' grounds on liability and quantum but, noting that the applicants called no witness to rebut the respondent's testimony and that the record did not show police absolving them, found no arguable appeal. Having failed the first limb, the court found it unnecessary to consider nugatory-ness.

p. 2
02

Arguability of grounds on liability and quantum

Holding

The proposed grounds on liability (that another vehicle's driver caused the accident and police absolved the applicants) and on quantum (colossal award, unsupported special damages) did not disclose an arguable appeal.

Reasoning

The court observed from the record that the applicants did not call any witness to rebut the respondent's testimony, and that contrary to the applicants' assertion, the record did not show that the police absolved them from blame. On quantum, it noted the award for pain and suffering was Kshs 8,000,000 with the rest under several heads of special damages, and declined to make definitive findings at the interlocutory stage.

p. 3

Legal principles established

#
  • An applicant under Rule 5(2)(b) must satisfy both limbs: that the appeal is arguable and that it will be rendered nugatory unless stay is granted.
  • A court dealing with a Rule 5(2)(b) application must not make definitive findings of fact or law at that stage.

Court orders

#
  1. 1.The Notice of Motion dated 3rd August 2017 seeking stay of execution pending appeal was dismissed with costs

Authorities

#

Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75

Cases cited (8)

  • Stanley Kangethe Kinyanjui v Tony Keter & 5 Others
    [2013] eKLR
  • Ruben & 9 Others v Nderitu & Another
    (1989) KLR 459
  • Halai & Another v Thornton & Turpin (1963) Ltd.
    (1990) KLR 365
  • David Morton Silverstein v Atsango Chesoni
    Civil Application No. Nai 189 of 2001
  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd
    Civil Application No. Nai 345 of 2004
  • Joseph Gitahi Gachau & Another v Pioneer Holdings (A) Ltd & 2 Others
    Civil Application No. 124 of 2008
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227
  • International Laboratory for Research on Animal Diseases v Kinyua
    [1990] KLR 403
On appeal from
High Court of Kenya at Nakuru
HCCC No. 34 of 2014
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Jubilee Hauliers Ltd & 2 others v Brian Muchiri Waihenya [2017] KECA 18 (KLR)", Case Analysis (2017). Civil Application No. 93 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/18/eng@2017-09-27

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