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. 19 of 2017 (UR No. 11/017)· [2017] KECA 552 (KLR)

SGT Catherine Elizabeth Russell v Abdisatar Sheikh Hassan (Civil Application 19 of 2017) [2017] KECA 552 (KLR)

Court of Appeal of Kenya
10 May 2017
GKG. B. M. KariukiFLF. Sicha leSKS. ole Kantai
1,395 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 three Nanyuki lawsuits because the applicant couldn't prove the other side couldn't refund costs if the appeal succeeded.

What this practically means

#

Executive summary

#
The applicant, Sgt Catherine Elizabeth Russell, moved the Court of Appeal at Nyeri under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of proceedings in three Nanyuki magistrate's suits (Nos. 37 of 2012, 63 of 2012 and 12 of 2015) pending an intended appeal against the High Court judgment of Kasango, J dated 2nd February 2017. That judgment had allowed the respondent's appeal and reversed a ruling of Chief Magistrate Nyaga, who had upheld an objection on jurisdiction grounded in sovereign immunity, the applicant being an employee of the British Army Training Unit Kenya (BATUK) driving a BATUK vehicle at the material time. The High Court held, relying on Sections 6.2, 6.3 and 6.4 of the Kenya-UK Memorandum of Understanding, that BATUK personnel bear the same civil-law obligations as Kenyan citizens, and reinstated the respondent's suit. The respondent, who had been awarded costs in the High Court, was moving to tax them. The application was heard ex parte as the respondent did not appear despite service. Applying the settled twin test from Butt v Rent Restriction Tribunal and Kenya Shell Ltd v Kabiru, the Court found the intended appeal arguable on the question whether the impugned decision rested on the MOU or on customary international law sovereign immunity. However, the applicant failed to establish that the appeal would be rendered nugatory, since she did not prove the respondent's inability to refund taxed costs. The Court dismissed the application with costs to the respondent.

Key legal issues

#
01

Whether the intended appeal was arguable

Holding

The intended appeal was arguable because the source of the immunity principle relied on (the MOU versus customary international law) and the state of the law were debatable points.

Reasoning

The Court applied the settled Rule 5(2)(b) test. It found a single arguable point sufficient and identified the interplay between the Kenya-UK Memorandum of Understanding and the customary international law principle of sovereign immunity as a genuinely debatable question of law, without examining the merits.

p. 3
02

Whether the appeal would be rendered nugatory absent a stay

Holding

The nugatory limb failed; the applicant bore the onus of showing the respondent could not refund taxed costs and did not discharge it.

Reasoning

Although arguability was established, the twin test requires both limbs. The applicant asserted that taxed and paid costs could not be refunded, but adduced no proof of the respondent's inability to refund, so the balance of the twin principles tipped against a stay.

p. 3

Legal principles established

#
  • An applicant under Rule 5(2)(b) must satisfy both limbs: an arguable appeal and that the appeal will be rendered nugatory without stay; a single arguable point suffices, but the burden on the nugatory limb rests on the applicant.
  • In assessing arguability the Court will not delve into the merits of the intended appeal.

Court orders

#
  1. 1.The applicant's Notice of Motion dated 24th February 2017 and lodged in Court on 27th February 2017 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

#

Legislation

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

Cases cited (2)

  • Butt vs. Rent Restriction Tribunal
    [1982] KLR 417
  • Kenya Shell Ltd vs. Kabiru & Another
    [1986] KLR 410
On appeal from
High Court of Kenya at Nanyuki
H.C.C.C. No. 12 of 2015
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "SGT Catherine Elizabeth Russell v Abdisatar Sheikh Hassan (Civil Application 19 of 2017) [2017] KECA 552 (KLR)", Case Analysis (2017). Civil Application No. 19 of 2017 (UR No. 11/017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/552/eng@2017-05-10

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