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Court of AppealDismissedCivil Application No. Nyeri 42 of 2017 (UR 28/2017)· [2017] KECA 310 (KLR)

Johnson Kibunja Njoka & another v Joseph Njuguna & 3 others [2017] KECA 310 (KLR)

Court of Appeal
27 September 2017
GKG.B.M. KariukiFSF. SichaaleSKS. ole Kantai
1,471 words in judgment
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The bottom line

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The Court of Appeal refused to pause a Ksh. 1.2 million costs order because the applicants showed neither a winning argument nor that payment would ruin their appeal.

What this practically means

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Executive summary

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The applicants, Johnson Kibunja Njoka and Christine Nyagitha Njoka, moved the Court of Appeal under Rules 5(2)(b), 42 and 43 of the Court of Appeal Rules for a stay of execution of the order of Ndung'u, J. of the High Court at Nakuru dated 12th April 2017, which dismissed their reference against a taxing officer's decision awarding the 4th respondent costs of Ksh. 1,203,443 in a succession cause. The applicants had earlier failed before the taxing officer, whose bill of costs was taxed at Ksh. 1,089,065, and their Rule 11 reference to the High Court was dismissed on the footing that no error of principle was established and the amount was not manifestly excessive. Before the Court of Appeal, counsel argued that the applicants were denied a fair hearing because the taxing master read only the last portion of her ruling, that the ruling was nebulous and uncertain, and that the applicants were impecunious so the appeal would be rendered nugatory. Applying the twin principles restated in Stanley Kangethe Kinyanjui v Tony Keter & 5 Others, the court held that no arguable appeal was established, since a typed and certified copy of the ruling was made available to the applicants and enabled them to file their reference timeously. On the nugatory limb, the court held that the applicants' own impecuniosity was irrelevant and that the respondent had stated she was a woman of means capable of refunding any sums paid. The application was therefore dismissed with costs. This ruling binds subordinate courts and the High Court on the Rule 5(2)(b) threshold it restates.

Key legal issues

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01

Whether the applicants established an arguable appeal

Holding

No arguable appeal was established; the applicants received a fair hearing because a typed and certified copy of the taxing master's ruling was made available to them and enabled them to file a reference timeously.

Reasoning

Although the taxing master read only the last portion of her decision, a typed and certified copy was subsequently made available upon objection by the applicants' counsel. That ruling enabled the applicants to file their Rule 11 reference in the High Court. The court therefore held the claim of a denied fair hearing could not ground an arguable appeal.

p. 3
02

Whether the appeal would be rendered nugatory if stay is not granted

Holding

The nugatory test was not satisfied; the applicants' own impecuniosity is irrelevant under Rule 5(2)(b), and the respondent asserted she is a woman of means able to refund any sums paid.

Reasoning

The applicants pleaded their own impecuniosity, but the court held that it is the respondent's circumstances that matter where the applicant seeks stay; if the respondent can refund sums paid should the appeal succeed, the appeal is not rendered nugatory. Both twin principles having failed, the stay application had to be dismissed.

p. 3

Legal principles established

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  • An applicant for stay under Rule 5(2)(b) must satisfy both twin principles of an arguable appeal and that the appeal would be rendered nugatory absent a stay.
  • Where an applicant alleges that an appeal will be rendered nugatory because of the respondent's impecunity, the onus shifts to the respondent to rebut by evidence.
  • In a Rule 5(2)(b) application, it is the respondent's circumstances, not the applicant's impecunity, that are relevant to the nugatory inquiry where the applicant is the party alleged to be impecunious and the respondent can refund.

Court orders

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  1. 1.The notice of motion dated 25th April, 2017 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 43
  • Court of Appeal RulesRule 75
  • Advocates Remuneration OrderRule 11(2)
  • Advocates Remuneration OrderRule 11

Cases cited (9)

  • 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
  • Ole Ganai v Arabo
    [1983] KLR 233
On appeal from
High Court at Nakuru
Nakuru High Court Succession Cause No. 347 of 2013
Jurisdiction invoked
Rules 5(2)(b), 42 & 43 of the Court of Appeal Rules (application for stay of execution pending intended appeal)

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, "Johnson Kibunja Njoka & another v Joseph Njuguna & 3 others [2017] KECA 310 (KLR)", Case Analysis (2017). Civil Application No. Nyeri 42 of 2017 (UR 28/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/310/eng@2017-09-27

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