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Court of AppealDismissedNyeri Civil Application No. 199 of 2020· [2020] KECA 100 (KLR)

Lawrence Miriti & 5 others v Meru North Farmers Sacco Ltd [2020] KECA 100 (KLR)

Court of Appeal
4 December 2020
WKW. KaranjaDMD.K. MusingaAMA.K. Murgor
935 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to pause execution against SACCO members because they never showed their appeal had any real legal merit.

What this practically means

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Executive summary

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The applicants sought, by Notice of Motion dated 9th July 2020 under rule 5(2)(b) of the Court of Appeal Rules, orders of status quo and stay of execution of a Cooperative Tribunal judgment of 7th May 2009 in Consolidated Tribunal Cases Nos. 177, 181, 182, 183 and 184 of 2016, pending the hearing of their appeal in High Court Appeal No. 363 of 2018 against a ruling of Githua, J delivered on 14th May 2020. The High Court had suspended warrants of arrest but allowed execution against the applicants' moveable assets, which had allegedly been attached by Bealine Kenya Auctioneers for a public auction. The respondent, Meru North Farmers SACCO Ltd, opposed, contending that the applicants were employing delaying tactics to avoid paying decretal sums owed since 2009. Applying the settled two-limb rule 5(2)(b) threshold as set out in Republic vs Kenya Anti-Corruption Commission & 2 others, the court found that the applicants had filed no draft memorandum of appeal in respect of the High Court ruling and had disclosed nothing indicative of their grievances against it, leaving the court unable to discern an arguable appeal. Having failed the mandatory first limb, the court did not consider the nugatory limb. The motion was dismissed with costs to the respondent. The judgment binds subordinate courts and tribunals to the principle that both limbs of the rule 5(2)(b) test must be demonstrated, and that failure of one limb is fatal to the application.

Key legal issues

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01

Threshold for stay of execution under rule 5(2)(b)

Holding

The applicant must show the appeal or intended appeal is arguable and that its success would be rendered nugatory; failing the first limb disposes of the application.

Reasoning

The court reiterated the two-limb test from Republic vs Kenya Anti-Corruption Commission & 2 others. The applicants filed a memorandum of appeal relating only to the High Court appeal against the Tribunal judgment, but no draft memorandum of appeal in respect of the High Court ruling on stay. Without material indicating their grievances, arguability could not be discerned, and the second limb need not be considered.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both limbs - arguability and nugatory - and satisfying only one limb is insufficient.

Court orders

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  1. 1.The motion dated 9th July 2020 is dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (1)

  • Republic vs Kenya Anti-Corruption Commission & 2 others
    [2009] eKLR
On appeal from
High Court at Nairobi
HCCC No. 363 of 2018
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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Cite this brief

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Cite this brief

Caselaw, "Lawrence Miriti & 5 others v Meru North Farmers Sacco Ltd [2020] KECA 100 (KLR)", Case Analysis (2020). Nyeri Civil Application No. 199 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/100/eng@2020-12-04

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