Kenya Power & Lighting Company Ltd v George Joseph Kang’ethe & another [2020] KECA 33 (KLR)
The bottom line
#Kenya Power won a stay of a Kshs 40 million damages award, but must deposit half the money in a joint account within 30 days.
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 and not frivolous
- 2.Whether the appeal would be rendered nugatory if stay of execution is not granted
Key legal issues
#Whether the intended appeal is arguable
The intended appeal was arguable because the contention that the award of compensatory damages breached the doctrine of stare decisis merited consideration at a full hearing.
The Court examined the memorandum of appeal and identified the stare decisis challenge to the damages award as a serious issue. Arguability requires only a serious question of law or a reasonable argument deserving consideration, not that the appeal must succeed. The contestation could only be resolved at a full hearing, and the other grounds raised were not frivolous.
Whether the appeal would be rendered nugatory if stay is not granted
Yes - given the colossal decretal sum of Kshs. 40,000,000, payment would cause the applicant hardship out of proportion to any suffering by the respondents and could render the appeal nugatory.
Factors rendering an appeal nugatory are case-specific and require balancing conflicting claims of both sides. The respondents had extracted a decree; the sum was colossal; the applicant apprehended inability to recover it on success, plus financial burden on services of a public nature. Applying Reliance Bank v Norlake, refusal would cause disproportionate hardship. The applicant was also willing to furnish security.
Legal principles established
#- Rule 5(2)(b) jurisdiction is original, independent and discretionary, and must be exercised judiciously and with reason.
- An arguable ground need not succeed; a single arguable ground suffices.
Court orders
#- 1.Stay of execution of the decree issued by the Environment & Land Court at Kajiado in ELC Cause No. 797 of 2017
- 2.Condition that the applicant deposits half of the decretal sum in a joint interest earning account in the names of advocates for the parties within 30 days of the ruling
- 3.Costs to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment & Land Court at Kajiado
- ELC Cause No. 797 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, Orders 42 Rule 6(4) and 51 Rule 1 of the Civil Procedure Rules, and Section 3A of the Appellate Jurisdiction Act
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.
Accordingly, the application dated 20th August, 2020 is allowed. There shall be stay of execution of the decree on condition that the applicant deposits half of the decretal sum in a joint interest earning account in the names of advocates for the parties within 30 days of this ruling. Costs shall abide the outcome of the intended appeal.
That in dealing with Rule 5(2) (b), the Court exercises original and discretionary jurisdiction and that exercise does not constitute an appeal from the judge’s discretion to this Court.
To refuse to grant an order of stay to the applicant would cause to it such hardships as would be out of proportion to any suffering the respondent might undergo while waiting for the applicants appeal to be heard and determined.
Issues in the judgment
#The judgment refers to 'Dennis Mogambi Mang'are v Attorney General & 3 others, (supra)' although no earlier reference to that case appears in the ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Abuku & another v Republic (Criminal Appeal E151 of 2022) [2026] KECA 722 (KLR)[2026] KECA 722 (KLR)10 Apr 2026
Cite this brief
#Cite this brief
Caselaw, "Kenya Power & Lighting Company Ltd v George Joseph Kang’ethe & another [2020] KECA 33 (KLR)", Case Analysis (2020). Civil Appeal (Application) No. E248 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/33/eng@2020-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.