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Court of AppealAllowedCivil Application No. 91 of 2018· [2019] KECA 691 (KLR)

Margaret Wanjiku Godwin v Henry Mwangi Gatai & 3 others [2019] KECA 691 (KLR)

Court of Appeal
5 April 2019
1,825 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal paused execution of a Kshs 5 million judgment, but only because the appellant agreed to deposit the full amount in a joint advocate-held account.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Okwengu, Musinga and Gatembu, JJ.A.) on an application under rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of the judgment of Gacheru, J. in ELC Case No. 59 of 2012 delivered on 9 February 2018. The dispute concerned a sale agreement over land LR No. 13084/5 in Karen, Nairobi, between the applicant (vendor) and the 1st and 2nd respondents (purchasers). The trial court declined the purchasers' claims for specific performance and a permanent injunction, holding they had not proved those prayers to the required standard, but awarded them damages of Kshs 5,000,000 with costs and interest. The applicant intended to appeal against the damages award and sought stay pending appeal. Applying the twin rule 5(2)(b) principles, the Court found the draft memorandum raised arguable issues - in particular that unpleaded general damages had been awarded - but held the appeal would not be rendered nugatory if stay were refused. However, because the respondents themselves deposed that the applicant resides abroad and has no known attachable assets, and proposed the decretal sum be held in a joint account, the Court allowed the application on conditions: stay of execution pending appeal conditional on the applicant depositing Kshs 5,000,000 into an interest-earning joint account of the parties' advocates within 30 days; the appeal to be filed within 60 days; and costs of the application to be in the appeal. The decision does not disturb the High Court judgment; it preserves the status quo pending the intended appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The draft memorandum of appeal raised arguable issues, notably that the trial court awarded general damages that were not pleaded or prayed for.

Reasoning

The Court perused the draft memorandum of appeal and found the grounds not frivolous and deserving of consideration. Relying on Tea Growers Association v KPAWU, it held that the applicant need not demonstrate likelihood of success; one arguable issue suffices. The contention that unpleaded general damages were awarded met that threshold, establishing arguability.

p. 2
02

Whether the appeal would be rendered nugatory absent stay

Holding

The Court found the appeal would not be rendered nugatory if the application were disallowed, but granted a conditional stay given the respondents' own concern about the applicant's assets abroad.

Reasoning

The respondents, though asserting they were people of means capable of refunding the decretal sum, deposed that the applicant resides out of the country and has no known attachable assets, and sought the decretal sum be deposited in a joint account. The Court found this concern legitimate and, balancing the interests of both parties, granted a conditional stay preserving the fruits of the judgment.

p. 3

Legal principles established

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  • An applicant for stay under rule 5(2)(b) must satisfy two requirements: that the appeal is arguable and not frivolous, and that it would be rendered nugatory if stay is not granted.
  • On arguability, the applicant need not show the appeal is likely to succeed; it is enough to show at least one issue upon which the Court should pronounce its decision.
  • A court may grant stay of a monetary decree in special circumstances, such as where the decretal amount is substantial and the decree-holder has no known assets within the jurisdiction, provided such orders are not prejudicial to either party.

Court orders

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  1. 1.Stay of execution of the judgment of Justice Gacheru in ELC No. 59 of 2012 pending the hearing and determination of the intended appeal
  2. 2.The applicant to deposit Kshs 5,000,000 into an interest-earning account in the joint names of the parties' advocates within thirty (30) days
  3. 3.The applicant to file her appeal within 60 days from the date of the order
  4. 4.Costs of the application to be in the appeal

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (5)

  • Githunguri v Jimba Credit Corporation Limited
    (1988) LLR 286
  • Tea Growers Association & Another v Kenya Planters & Agricultural Workers Union
    Civil Application No 72 of 2001
  • Mukuma v Abuoga
    (1988) KLR 645
  • Ujagar Singh v Runda Coffee Estates Limited
    [1966] EA 263
  • Siegfried Busch v MCSK
    [2013] eKLR
On appeal from
High Court of Kenya at Nairobi
ELC Case No. 59 of 2012
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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Margaret Wanjiku Godwin v Henry Mwangi Gatai & 3 others [2019] KECA 691 (KLR)", Case Analysis (2019). Civil Application No. 91 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/691/eng@2019-04-05

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