Attorney General v Eunice Makori & Hellen Makone (The administrators and personal representatives of the estate of the late Johnson Onduko Makori (deceased) [2020] KECA 198 (KLR)
The bottom line
#The Court of Appeal refused to block execution of a Kshs 9.2 million judgment against the Ministry of Defence, finding the intended appeal had no arguable basis.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal under Rule 5(2)(b)
The intended appeal was not arguable; the alleged new evidence (the Ndungu Report, published June 2004) was always available, the suit was filed in 2006, and the applicant gave no reason for the four-year delay in seeking review. The fair-hearing ground also lacked arguability as no evidence of denial of a fair hearing was presented.
The Court applied the settled two-limb Rule 5(2)(b) test. On the first limb, it found the draft grounds of appeal unpersuasive on a prima facie basis: the Ndungu Report predated the suit and was publicly available, so the learned Judge was right to find a lack of due diligence. The claim of denial of fair hearing under Article 50 failed because two witnesses testified for the applicant at trial and the applicant had robustly challenged the judgment by seeking review.
Whether the applicant deserved the discretionary relief of stay
Even on the equities, the applicant did not deserve the Court's discretion: it took possession of the suit parcels under a deed of surrender and has refused to pay the decretal sum for many years.
The Court weighed the circumstances of the matter. The applicant had taken over the suit parcels from the respondents against a document of surrender on a promise to pay a valuation-based consideration of Kshs. 9,200,000, which remained unpaid years later. A party refusing to pay a decretal sum cannot be aided by the Court's discretion to stay proceedings and execution pending an appeal that had not been shown to be arguable.
Whether the nugatory limb needed determination
Having failed the first (arguability) limb, the application necessarily failed without reaching the nugatory limb.
The Court reiterated that both limbs of the Rule 5(2)(b) test must be satisfied. Since the applicant failed to demonstrate that the intended appeal was arguable, the Court did not need to resolve whether the appeal would be rendered nugatory by the issuance of warrants of arrest against the Principal Secretary. Failure on the first limb alone is determinative.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both limbs: that the appeal or intended appeal is arguable, and that unless stay is granted it will be rendered nugatory; failure on the first limb is fatal.
- A party seeking review on grounds of newly discovered evidence must demonstrate due diligence; evidence that was always available to the party does not qualify, and indolence disqualifies the party from the court's discretion.
- In an application for stay, the court exercises its discretion so as not to render a successful appeal nugatory, judged against the particular circumstances of each case.
Court orders
#- 1.The Notice of Motion dated 22nd May, 2020 seeking stay of execution and issuance of warrants of arrest pending appeal was dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- Misc. Appl. No. 74 of 2016 (arising from HCCC No. 168 of 2009)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of proceedings/execution pending intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General v Eunice Makori & Hellen Makone (The administrators and personal representatives of the estate of the late Johnson Onduko Makori (deceased) [2020] KECA 198 (KLR)", Case Analysis (2020). Civil Application No. 130 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/198/eng@2020-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.