John Muthee Ngunjiri & 4 others v Kenya Power & Lighting Company Limited [2018] KECA 219 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop Kenya Power from seizing KANU Nakuru's property because money damages could compensate the applicants if their appeal later 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 intended appeal is arguable under the first limb of the Rule 5(2)(b) test
- 2.Whether the success of the intended appeal would be rendered nugatory if stay of execution is not granted
Key legal issues
#Arguability of the intended appeal
The issue raised (whether a branch of a registered political party is a distinct legal entity from the party) was not frivolous, though the Court doubted the likelihood of success; the benefit of doubt went to the applicants.
The applicants argued the High Court misconstrued the Political Parties Act, 2011, which transited political parties into body corporates, and ignored the Constitution's property rights and the Land Registration Act. The Court held the test is not likelihood of success but whether the issue is capable of full argument; it is not frivolous even if unlikely to succeed.
Nugatory aspect
The nugatory limb failed: nothing showed the property was unique and irreplaceable, and no averment that the respondent could not compensate the applicants in damages if the appeal succeeded.
The property had an open market value given for auction purposes, so it has value. There was no averment of the respondent's incapacity to compensate. Following the Kinyanjui test, reversibility or compensability by damages defeats the nugatory limb; the applicants therefore discharged neither onus fully and the application failed.
Legal principles established
#- The twin principles for granting stay under Rule 5(2)(b) are that the intended appeal is arguable and that, if orders are not granted, the appeal will be rendered nugatory.
- The Court of Appeal's jurisdiction on a Rule 5(2)(b) application is triggered by the filing of a notice of appeal, not by the competent filing of the main appeal.
- A single bona fide ground of appeal suffices to satisfy the arguability limb.
Court orders
#- 1.The application for stay of execution under Rule 5(2)(b) is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 14 of 2004
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules; jurisdiction precipitated by filing of a notice of appeal under Rule 75
Relief refused
#Stay of execution of the High Court judgment of 17 November 2016 pending the intended appeal
The applicants failed to satisfy the nugatory aspect of the Rule 5(2)(b) test; the property was not shown to be unique and irreplaceable and damages could compensate
Costs
The application was dismissed with costs to the respondent
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.
In the event, the entire application fails and we order that it be and is hereby dismissed with costs.
The court becomes seized of the matter only after the notice of appeal has been filed under Rule 75
A single bona fide ground of appeal will suffice if it is shown to exist. It does not have to succeed ultimately, but it has certainly to be capable of full argument before the court.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Muthee Ngunjiri & 4 others v Kenya Power & Lighting Company Limited [2018] KECA 219 (KLR)", Case Analysis (2018). Civil Appeal No. 149 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/219/eng@2018-10-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.