Migori County Government & another v Migori County Transport Sacco [2018] KECA 246 (KLR)
The bottom line
#Kenya's Court of Appeal paused the Kshs. 2 million award against Migori County pending appeal, but let the SACCO keep operating from its usual bus park.
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 (Civil Appeal No. 110 of 2017) is arguable
- 2.Whether, unless stay and injunction are granted, the appeal would be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The applicants demonstrated an arguable appeal on whether the Kshs.2,000,000 damages award was manifestly excessive and without proper basis, and whether the 1st applicant lawfully carried out its mandate of regulating public transport in Migori County.
The court reiterated that an arguable appeal is not one which must succeed but one which is not frivolous, and that a single arguable ground suffices. It declined to delve into the merits, which it said are the preserve of the bench that will hear the intended appeal. The draft memorandum raised arguable grounds on quantum of damages and the lawfulness of the county's regulatory mandate over bus parks.
Nugatory aspect - ability to repay the decretal sum
The nugatory aspect was satisfied: the respondent, having failed to prove its ability to repay Kshs.2,000,000, bore the shifted evidential burden once the applicants raised reasonable fears of non-repayment.
Relying on National Industrial Credit Bank Ltd v Wasike, the court held that while the legal duty is on the applicant to prove that the appeal would be rendered nugatory, once a reasonable fear of non-repayment is expressed the evidential burden shifts to the respondent, since its resources are peculiarly within its knowledge. The respondent tendered no proof of ability to repay and did not show prejudice from operating from designated bus parks.
Scope of relief granted under Rule 5(2)(b)
Stay was granted only in respect of the money decree; the injunction restricting the respondent's operations was refused, with costs to abide the appeal.
Balancing the interests of both parties, the court was satisfied both limbs were met only as relates to the money decree. It declined prayer 2, which sought to restrain the respondent from picking and dropping passengers anywhere other than designated bus parks in Migori County pending the hearing and determination of Civil Appeal No. 110 of 2017.
Legal principles established
#- In dealing with Rule 5(2)(b) applications the Court of Appeal exercises original and discretionary jurisdiction, which does not constitute an appeal from the judge's discretion; an arguable appeal need not succeed but must not be frivolous, and a single arguable ground suffices.
- Once an applicant under Rule 5(2)(b) expresses a reasonable fear that a respondent would be unable to repay the decretal sum, the evidential burden shifts to the respondent to show its resources.
Court orders
#- 1.Stay of execution granted of the decree relating to the payment of Kshs.2,000,000/= pending the hearing and determination of Civil Appeal No. 110 of 2017
- 2.Prayer 2 (injunction restraining the respondent from carrying out public transport business except from designated bus parks) declined
- 3.Costs of the application to abide by the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Migori
- Petition No. 3 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Injunction restraining the respondent from operating from anywhere other than designated bus parks in Migori County pending the appeal
The court granted stay only in respect of the money decree and declined the injunctive relief sought under prayer 2
Costs
The costs of this application to abide by the outcome of the appeal.
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.
That in dealing with Rule 5(2)(b), the Court exercises original and discretionary jurisdiction and that exercise does not constitute an appeal from the judge’s discretion to this Court.
an arguable ground of appeal is not one which must succeed but it should be one which is not frivolous; a single arguable ground of appeal would suffice to meet the threshold that an intended appeal is arguable
Once an applicant expresses a reasonable fear that a respondent would be unable to pay back the decretal sum, the evidential burden must then shift to the respondent to show what resources he has since that is a matter which is peculiarly within his knowledge
In terms of prayer 1 we grant stay of execution of the decree relating to the payment of Kshs.2,000,000/= pending the hearing and determination of Civil Appeal No. 110 of 2017.
The costs of this application to abide by the outcome of the appeal.
Issues in the judgment
#The judgment refers to Reliance Bank Ltd vs. Norlake Investments Ltd with '(supra)' although it had not previously been cited in the ruling, and the judgment itself is styled 'RULING OF THE COURT' while the parties frame it as an interlocutory application; the date of delivery appears twice with conflicting indications in the narrative ('pending the delivery of this ruling').
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Migori County Government & another v Migori County Transport Sacco [2018] KECA 246 (KLR)", Case Analysis (2018). Civil Application No. 82 of 2017 (UR 53/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/246/eng@2018-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.