Suleiman Abdalla Ewaton v Trustees Muslim Association Jamia Mosque Committee & 3 others [2018] KECA 707 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a High Court ruling because winning an appeal later would not make it useless, showing both test requirements are mandatory.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal was arguable, a single bona fide arguable ground sufficing, particularly the ground that the learned Judge granted stay of execution orders that had not been formally sought.
The court applied the settled principle that an arguable appeal need not be one that must succeed, only one that is not frivolous, and that a single bona fide arguable ground suffices. It found that the applicant's draft memorandum raised such a ground, namely that the High Court granted stay orders that had not been formally prayed for by the respondents.
Whether the appeal would be rendered nugatory if stay is not granted
The court found the appeal would not be rendered nugatory, as the respondents asserted safeguards in the 1st respondent's constitution against waste of assets, and conflicting claims had to be weighed on the particular facts.
Relying on Reliance Bank Ltd v Norlake Investments Ltd, the court held that nugatory-ness must be assessed within the circumstances of each case, considering conflicting claims of both sides. The respondents submitted that they were cited as officials of the 1st respondent and that its constitution contained sufficient safeguards against sale or waste of assets. The court accepted this, finding no nugatory-ness.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory limbs; satisfying only one is insufficient
Court orders
#- 1.Stay of execution and proceedings pending the hearing and determination of the intended appeal is declined
- 2.The application is dismissed
- 3.The costs of the application shall abide the outcome of the appeal
- On appeal from
- High Court of Kenya, Eldoret
- Eldoret High Court Civil Appeal No. 149 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Suleiman Abdalla Ewaton v Trustees Muslim Association Jamia Mosque Committee & 3 others [2018] KECA 707 (KLR)", Case Analysis (2018). Civil Application No. 21 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/707/eng@2018-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.