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Court of AppealAllowedCivil Application No. NAI 349 of 2018 (UR 283/2018)· [2019] KECA 761 (KLR)

Commissioner of Police and & 1 other v Intraspeed Logistics Ltd & 8 others

Court of Appeal
10 May 2019
RNR. N. NambuyeSKS. Gatembu KairuAMA. K. Murgor
1,743 words in judgment
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The bottom line

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Kenya's Court of Appeal paused enforcement of a massive High Court judgment against the police, ruling the appeal raised real issues and payment would be hard to reverse.

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 (Nambuye, Gatembu Kairu and Murgor, JJ.A) on an application under rule 5(2)(b) of the Court of Appeal Rules for stay of execution of a judgment of the High Court (Mbogholi Msagha, J) dated 28th June 2018 in HCCC No. 398 of 2009. The respondents, victims of the 2007-2008 post-election violence whose commercial trucks were destroyed along the Nakuru-Eldoret-Busia-Malaba highway, obtained judgment against the Commissioner of Police and the Attorney General for approximately USD 47.5 million for destroyed vehicles, plus assessed loss of business at 15% per truck per annum for six years and further awards including Kshs. 20 million to the 16th respondent. The applicants lodged a notice of appeal and sought stay pending the intended appeal, contending the appeal was arguable on grounds including failure of proof of special damages, excessive awards, and limitation under the Public Authorities Limitation Act, and that payment would render the appeal nugatory since the respondents are foreigners from whom refund would be difficult. The respondents opposed, arguing the appeal was not arguable and that execution had not commenced. Applying the settled twin principles - arguability and nugatory-ness - the Court found a single arguable issue (special damages neither pleaded nor proved) sufficed, and that the astronomical decretal sum and risk of irrecoverable payment justified maintaining the status quo. The application was allowed; stay of execution was granted pending the intended appeal, conditional on the applicants filing and serving the record of appeal within 45 days, failing which the stay lapses automatically. Costs of the application abide the outcome of the appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal is arguable; grounds including that special damages were neither pleaded nor proved suffice.

Reasoning

The applicants intend to challenge the judgment on the ground that the Judge awarded special damages that were neither pleaded nor proved to the required standard. Applying the settled principle that an arguable appeal need not necessarily succeed and that a single arguable issue is sufficient, the Court concluded the appeal is not frivolous.

p. 3
02

Whether the appeal would be rendered nugatory if stay is not granted

Holding

Yes. The astronomical judgment sum and the risk of inability to obtain a refund from foreign respondents justified maintaining the status quo.

Reasoning

Nugatory-ness depends on the circumstances of each case. The judgment amount was astronomical; if paid over and the appeal succeeded, the applicants apprehend they would be unable to obtain a refund from respondents described as foreigners with perfunctory interests in Kenya. That justified maintaining the status quo pending appeal.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate that the appeal or intended appeal is arguable and that, unless stay or injunction is granted, the success of the appeal will be rendered nugatory.
  • A single arguable issue suffices to establish that an appeal is arguable; the appeal need not necessarily succeed.
  • Requiring an applicant to pay a huge sum of money before an appeal is heard may render the appeal nugatory.

Court orders

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  1. 1.Stay of execution of the judgment of the High Court given 28th June 2018 in HCCC No. 398 of 2009 pending the hearing and determination of the intended appeal
  2. 2.Applicants to file and serve the memorandum and record of appeal within 45 days from the date of delivery of the ruling, failing which the order for stay of execution shall automatically stand discharged
  3. 3.Costs of the application to abide the outcome of the intended appeal
On appeal from
High Court of Kenya at Nairobi
HCCC No. 398 of 2009
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (jurisdiction to grant stay of execution/injunction pending appeal)

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, "Commissioner of Police and & 1 other v Intraspeed Logistics Ltd & 8 others", Case Analysis (2019). Civil Application No. NAI 349 of 2018 (UR 283/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/761/eng@2019-05-10

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