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Court of AppealAllowedCivil Application No. 209 'A' of 2016· [2017] KECA 600 (KLR)

Christine Nthakye Wambua v Stephen Mbuthi & 2 others [2017] KECA 600 (KLR)

Court of Appeal of Kenya
7 April 2017
WKW. KaranjaMartha Karambu KoomeM.K. KoomeSKS. ole Kantai
1,729 words in judgment
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The bottom line

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Kenya's Court of Appeal paused execution of a malicious prosecution award because the appellant was poor and the winners had moved away, pending her appeal.

What this practically means

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Executive summary

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Christine Nthakye Wambua, the applicant, sought stay of execution of a judgment of the High Court at Garissa (Dulu J.) delivered on 28th July 2016 in Civil Appeal No. 16 of 2014, which reversed the dismissal by the trial magistrate of the respondents' suit and awarded them Ksh 100,000 for malicious prosecution, plus costs. The claim arose from the applicant's report that her missing donkeys were found in the respondents' compound, leading to the respondents' prosecution for stealing stock, for which they were acquitted and then successfully sued. The application was brought under Rule 5(2)(b) of the Court of Appeal Rules and proceeded unopposed under Rule 56(2), the respondents having been duly served but not appearing. Applying the twin tests of arguable grounds and nugatory effect, the court found that whether the applicant was driven by malice in reporting to the chief and police, and what role the chief and police played, were arguable issues not for determination at this interlocutory stage. On the nugatory limb, the applicant's uncontroverted allegations of indigence and the respondents' relocation meant the balance of convenience favoured a stay, drawing on the Butt v Rent Restriction Tribunal principles and Oraro & Rachier Advocates v Co-operative Bank of Kenya. The court allowed the motion, but conditioned the stay on the applicant filing the record of appeal within 90 days, failing which the orders would lapse, and directed that the appeal be given a priority hearing date. Costs of the application were made to abide the outcome of the intended appeal.

Key legal issues

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01

Whether the intended appeal raises arguable grounds

Holding

The court found arguable issues concerning malice in reporting the loss of animals to the chief and police, and the role of the chief and police in the arrest and prosecution of the respondents

Reasoning

The court declined to delve into the merits of the malicious prosecution claim, reserving that for the appeal bench. It identified whether the applicant was driven by malice, spite or improper motives in reporting to the chief, whether merely reporting the disappearance of her animals made her responsible for the respondents' arrest and charging, and the roles of the chief and police as issues that were not frivolous and thus arguable, satisfying the first limb of the Rule 5(2)(b) test.

p. 3
02

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

Holding

The court found the nugatory test satisfied on the uncontroverted evidence that the applicant was indigent and the respondents had relocated, making repayment of the judgment debt difficult

Reasoning

The applicant contended that execution would have devastating effects on her as an indigent person, and that the respondents had relocated from the area making recovery of any sums paid effectively impossible. These allegations were uncontroverted as no replying affidavit was filed. Guided by Oraro & Rachier Advocates v Co-operative Bank of Kenya Limited, the court held the balance of convenience favoured staying execution until the appeal was heard and determined.

p. 3

Legal principles established

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  • An application for stay of execution under Rule 5(2)(b) must satisfy the twin tests of arguable grounds and nugatory effect
  • Nugatory is given its full meaning, extending beyond worthlessness to include trifling or frivolous outcomes
  • An arguable issue need not be a point that will succeed on appeal; it suffices that it is not frivolous
  • Where a respondent does not controvert allegations of impecuniosity or relocation by a replying affidavit, the court may act on the uncontroverted material in assessing the balance of convenience

Court orders

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  1. 1.Allowance of the Notice of Motion dated 7th September 2016 seeking stay of execution
  2. 2.Applicant to file the record of appeal (if not yet filed) within 90 days from the date of the ruling, failing which the stay orders shall stand vacated
  3. 3.The appeal to be given a priority date for hearing
  4. 4.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Penal Codesection 278
  • Criminal Procedure Codesection 215
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 56(2)
  • Appellate Jurisdiction Actsection 3A

Cases cited (4)

  • Butt Vs Rent Restriction Tribunal
    [1982] KLR page 417
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227
  • International Laboratory for Research on Animal Diseases v Kinyua
    [1990] KLR 403
  • Oraro & Rachier Advocates Vs Co-operative Bank of Kenya Limited
    Civil Application No. NAI 358 of 1999 (unreported)
On appeal from
High Court of Kenya at Garissa
High Court Civil Appeal No. 16 of 2014
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Christine Nthakye Wambua v Stephen Mbuthi & 2 others [2017] KECA 600 (KLR)", Case Analysis (2017). Civil Application No. 209 'A' of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/600/eng@2017-04-07

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