J G M v G W G [2018] KECA 429 (KLR)
The bottom line
#Kenya's Court of Appeal stopped the sale of a family's properties and a Kshs 23 million costs demand until the husband's appeal is heard.
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
- 2.Whether, unless the relief sought is granted, the intended appeal would be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable
The appeal was arguable; the right to be heard on a cause or defence is a fundamental issue, and whether J was condemned unheard, and whether he was undeserving of the setting aside discretion, merited full consideration on appeal.
The Court observed that the High Court Judge made a finding that the advocate chose not to inform J of the hearing date, yet dismissed the setting aside application. Whether a party not informed of a hearing date should be condemned unheard is a fundamental issue of monumental standard, and the Court held such a point cannot be termed frivolous. It was also arguable whether J was a litigant of unserious or obstructive character.
Whether the appeal would be rendered nugatory if stay were refused
Yes. The suit properties represented the entirety of the parties' known properties, included the matrimonial home where the children reside, and the costs demanded were about Kshs 23 million; executing such drastic and irreversible consequences pending appeal would render a successful appeal a mockery.
The properties were of substantial value and their sale would be a big blow should it turn out they should not have been sold. The matrimonial home housing the children of the marriage was listed for sale and G had not denied it. The demand of Kshs 23 million costs in a matrimonial matter was also arguably exorbitant. Drastic, irrecoverable and irreversible consequences should crystallise only after appeal rights are exhausted.
Legal principles established
#- On a rule 5(2)(b) application an applicant must satisfy both limbs: an arguable appeal and that the appeal would be rendered nugatory absent the relief.
- The arguability threshold requires at least one point that is not frivolous and calls for a response and a decision from the Court.
Court orders
#- 1.Stay of execution of the High Court ruling of 3rd February 2017 and of the decree and consequential processes granted as interim relief
- 2.The intended appeal to be filed within forty five (45) days of the date of the ruling
- 3.The intended appeal to be fast-tracked for hearing
- 4.Each party at liberty to apply
- 5.Costs to be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 35 of 2008
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
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.
an applicant in order to succeed must show that he has an arguable appeal by which is meant an appeal that raises at least one legitimate point of grievance to be urged on appeal and which calls for a response from the respondent and a decision from the Court. It is enough that the said point is not frivolous.
The right to be heard on a cause or defence is fundamental issue of monumental standard which cannot be wished away.
Ultimately, we are persuaded that this is a deserving case for us to grant the interim relief sought and we allow the application. The intended appeal shall be filed within forty five (45) days of the date hereof and shall be fast-tracked for hearing. Each party is at liberty to apply. Costs shall be in the intended appeal.
Issues in the judgment
#The judgment contains internally inconsistent dates for the High Court judgment: earlier stated as 26th September 2013, later as 26th September 2014.
The affidavit dates are inconsistent: J's affidavit supporting the setting-aside application is described as sworn 30th September 2014, though the judgment had been rendered in September 2013, and G's opposing affidavit is described as sworn 28th October 2014.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "J G M v G W G [2018] KECA 429 (KLR)", Case Analysis (2018). Civil Application No. 254 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/429/eng@2018-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.