National Hospital Insurance Fund v Joel Mutuma Kirimi & another [2020] KECA 42 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop execution of a Kshs.10 million judgment against NHIF for using two advocates' images in adverts without consent.
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
- 2.Whether the appeal would be rendered nugatory if stay of execution of the judgment and ruling is not granted
Key legal issues
#Arguability of the intended appeal
The court found arguable points in the draft memorandum of appeal concerning the elements of a claim for unlawful use of a person's name or image and whether the use was commercial or exploitative.
The court perused the draft Memorandum of Appeal and identified proposed grounds that the trial Judge erred in law and fact in failing to appreciate the key elements of a claim for unlawful use of a person's name or image and in finding that the images were used for exploitative or commercial purposes. These were sufficient to satisfy the first limb of the rule 5(2)(b) test.
Whether the appeal would be rendered nugatory absent stay
The court held the appeal would not be rendered nugatory because the conditional stay was not onerous, part of the decree had been satisfied, and the respondent decree-holders, both advocates, were capable of refunding the decretal sum.
The court reasoned that the respondents had succeeded in their suit and been awarded damages; the applicant had been granted a conditional stay which the court did not consider onerous or a denial of stay. The respondents asserted they were reputable advocates able to refund the decretal sum, and part of the decree had already been satisfied with an undertaking to pay the balance. Nugatory prong therefore failed.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate that the appeal or intended appeal is arguable, and that the appeal will be rendered nugatory absent stay.
- A conditional stay requiring part payment of a monetary decree is not, without more, onerous so as to amount to a denial of stay, and for a monetary decree the applicant must show the decree holder cannot refund the decretal sum.
Court orders
#- 1.The two Motions are dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- H.C.C.C. No. 7 of 2019
- Jurisdiction invoked
- Rules 5(2)(b) and 41 of the Court of Appeal Rules
- Consolidated with
- Civil Appeal No. 45 of 2020
Relief refused
#Stay of execution of the judgment of 6th February 2020 and the ruling of 27th April 2020 pending the intended appeal
The appeal is arguable but the nugatory prong was not satisfied: the respondents had succeeded at trial, part of the decree had been satisfied, and the respondents, both advocates of good standing, demonstrated ability to refund the decretal sum.
Costs
The two Motions fail and are dismissed with costs to the respondents.
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.
For an applicant to succeed he must, firstly, demonstrate that the appeal, or intended appeal, is arguable, which is the same as saying that it is not frivolous. Such an applicant must, secondly, show that the appeal would be rendered nugatory absent stay – See Stanley Kangethe Kinyanjui v Tony Ketter & Others [2013] eKLR.
The two Motions fail and are dismissed with costs to the respondents.
The decree is a monetary decree and the applicant ought to demonstrate that the decree holder would not be able to refund the decretal sum in case of successful appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Hospital Insurance Fund v Joel Mutuma Kirimi & another [2020] KECA 42 (KLR)", Case Analysis (2020). Civil Application No. 42 of 2020 (consolidated with Civil Application No. 45 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/42/eng@2020-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.