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Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal (Application) No. E247 of 2020· [2020] KECA 54 (KLR)

Kenya Power & Lighting Company Ltd v Eunice Nkirote Ringera

Court of Appeal
18 December 2020
1,665 words in judgment
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The bottom line

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The Court of Appeal paused Kenya Power from paying a Kshs. 14 million judgment until its appeal is heard, on condition it deposits half the money.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi on a motion dated 20th August 2020 by Kenya Power & Lighting Company Ltd seeking stay of execution of the judgment and decree of the Environment & Land Court at Kajiado (C. Ochieng, J) dated 27th July 2020 in ELC Cause No. 869 of 2017, in which the respondent was awarded over Kshs. 14,000,000/- in damages, pending an intended appeal. The application was brought under Rule 5(2)(b) of the Court of Appeal Rules, Orders 42 and 51 of the Civil Procedure Rules and Section 3A of the Appellate Jurisdiction Act. The respondent opposed, contending the application was defective and that the applicant, having failed to defend the suit, could not show the appeal would be rendered nugatory. The court reaffirmed that Rule 5(2)(b) jurisdiction is original, independent and discretionary, and that an applicant must show an arguable (not necessarily successful) appeal and that the appeal would be rendered nugatory absent stay. Finding the challenge to the damages award arguable, and noting the colossal decretal sum, doubts about the respondent's ability to refund, the public nature of the applicant's operations, and the applicant's offer of security, the court allowed the application on condition that the applicant deposit half the decretal sum in a joint interest-earning account within 30 days, with costs to abide the appeal.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The intended appeal is arguable; the contention that the award of compensatory and general damages breached the principle of stare decisis merits consideration at a full hearing.

Reasoning

The court examined the memorandum of appeal and identified the challenge to the award of compensatory and general damages as a serious question. The applicant contended the award breached stare decisis while the respondent defended the award on the basis of trespass. The court held such contestation can only be resolved at a full hearing, so the grounds were not frivolous.

p. 2
02

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

Holding

Stay was warranted because the decretal sum of over Kshs. 14,000,000/- is colossal; payment might not be recoverable on success and could paralyze the applicant's public-service operations.

Reasoning

The court held that nugatory-impact factors are case-specific and require weighing the conflicting claims of both sides. The decretal sum exceeding Kshs. 14,000,000/- was a colossal sum; the respondent's ability to refund was doubted, and payment could negatively impact the applicant's electricity supply operations. The applicant also offered security.

p. 2

Legal principles established

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  • The jurisdiction of the Court of Appeal under Rule 5(2)(b) is original, independent and discretionary, and must be exercised judiciously and with reason.
  • An applicant for stay under Rule 5(2)(b) must demonstrate an arguable appeal that is not frivolous and, in addition, that the appeal if successful would be rendered nugatory absent a stay.
  • A single arguable ground of appeal suffices; arguability does not require that the appeal must succeed.

Court orders

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  1. 1.Stay of execution of the judgment and decree of the Environment & Land Court dated 27th July 2020 granted 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 from the date of the ruling
  2. 2.Costs to abide the outcome of the intended appeal
On appeal from
Environment & Land Court at Kajiado
ELC Cause No. 869 of 2017
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules; Order 42 Rule 6(4) and Order 51 Rule 1 of the Civil Procedure Rules; Section 3A of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Kenya Power & Lighting Company Ltd v Eunice Nkirote Ringera", Case Analysis (2020). Civil Appeal (Application) No. E247 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/54/eng@2020-12-18

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