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Court of AppealDismissedCivil Application No. 63 of 2019· [2019] KECA 199 (KLR)

Bernard Mwiti Rintari v Isaiah Mbaabu Ruchuiaka [2019] KECA 199 (KLR)

Court of Appeal
8 November 2019
Martha Karambu KoomeM. K. KoomeHOHannah OkwenguSKS. ole Kantai
697 words in judgment
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The bottom line

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The Court of Appeal refused to pause a Meru High Court decision because you cannot stay an order that merely dismisses a case — there is nothing to enforce.

What this practically means

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Executive summary

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The applicant moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution of a ruling of the High Court at Meru (Mbugwa, J) delivered on 28th March 2019, which dismissed his application for leave to change advocates and to reinstate his suit dismissed on 26th June 2018. He argued that he had a good appeal with high chances of success and that without stay he would be rendered destitute and homeless, his damage not compensable by damages. The respondent, the defendant in the dismissed suit, countered that there was nothing to stay since the suit stood dismissed and no order capable of execution existed. Applying the established twin test, the court found the draft memorandum of appeal raised eight grounds that could not be dismissed as unarguable at that stage, one arguable issue sufficing, so the first limb was satisfied. However, the second limb failed: the order sought to be stayed was one dismissing an application for reinstatement, hence nothing capable of execution, and a successful appeal would simply result in reinstatement of the suit. Emphasising that both requirements must be met conjunctively, the court dismissed the motion with costs on 8th November 2019.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The draft memorandum of appeal set out 8 grounds which, though they may not succeed, cannot be dismissed as not arguable at this stage.

Reasoning

The court noted that beyond bare assertion of a good appeal, the applicant had not stated particular facts engendering confidence in success, but a stamped-less draft memorandum with 8 grounds met the low arguability threshold; one arguable ground is enough.

p. 1
02

Whether the appeal would be rendered nugatory without stay

Holding

The nugatory test failed because the order sought to be stayed was one of dismissal, with nothing capable of execution.

Reasoning

The High Court ruling merely dismissed an application for change of advocates and reinstatement of a suit already dismissed. If the intended appeal succeeded, the suit would simply be reinstated; no execution would occur in the interim, so no stay could issue.

p. 1

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both the arguability and the nugatory-impact requirements; satisfying only one is insufficient.
  • A single arguable ground suffices at the Rule 5(2)(b) stage.
  • An order dismissing an application (such as for reinstatement of a suit) is not capable of execution and a stay of execution will not issue in respect of it.

Court orders

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  1. 1.The motion for stay of execution pending hearing and determination of the intended appeal is dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (4)

  • Reliance Bank Ltd (In Liquidation) vs. Norlake Investments Ltd
    [2002] 1 EA 227
  • Ishmael Kagunyi Thande vs. Housing Finance Kenya Ltd.
    Civil Appl No. Nai 157 of 2006 (Unreported)
  • Republic v. Kenya Anti-Corruption Commission & 2 others
    [2009] KLR 31
  • Kenya Tea Growers Association & Another vs Kenya Planters & Agricultural Workers Union
    Civil Application Nai. No. 72 of 2001
On appeal from
High Court of Kenya at Meru
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, "Bernard Mwiti Rintari v Isaiah Mbaabu Ruchuiaka [2019] KECA 199 (KLR)", Case Analysis (2019). Civil Application No. 63 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/199/eng@2019-11-08

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