Kenya Red Cross Society v Mbondo Katheke Mwania [2020] KECA 238 (KLR)
The bottom line
#The Court of Appeal refused to stop enforcement of a Kshs.3.5 million judgment because the claim had already been settled and paid, leaving nothing to stay.
What this practically means
#Executive summary
#Key legal issues
#The twin test for grant of stay of execution pending appeal under Rule 5(2)(b)
The applicant failed to satisfy the twin test: the court doubted that the intended appeal was arguable and was not persuaded that the appeal would be rendered nugatory since the claim had been settled.
The court reiterated the settled principles from Ishmael Kagunyi Thande vs. Housing Finance Company Limited that jurisdiction under rule 5(2)(b) is discretionary and guided by two principles: the appeal must be arguable and its success must not be rendered nugatory. Without prejudging the intended appeal, the court doubted its arguability given the applicant's failure to comply with the High Court's orders of 23rd September 2019. Independently, the respondent's uncontested averment that the claim had been settled meant nothing remained to stay.
Whether a litigant who created an awkward situation may invoke the court's favourable discretion
A party cannot rely on an awkward situation created by itself to seek a favourable exercise of the court's discretion, a ground on which the High Court had declined to extend time for compliance.
The applicant's own non-compliance with the conditional orders of 23rd September 2019 - filing the memorandum of appeal and depositing the decretal amount in a joint account - led to dismissal of its application. The High Court refused extension on 19th November 2019 on the ground that the applicant could not rely on an awkward situation created by itself, and the review application before Odunga, J. was likewise declined. This history underpinned the appellate court's doubt about arguability.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both limbs: an arguable (or reasonably arguable) intended appeal and that the appeal, if successful, would be rendered nugatory absent the orders sought.
- A stay of execution cannot issue where the decretal claim has been settled and compensation paid, as there is then nothing capable of being stayed.
Court orders
#- 1.The application dated 12th February 2020 for stay of execution pending appeal is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- High Court of Kenya at Machakos
- Machakos High Court Misc. Application No. 393 of 2018 (Formerly Kitui Misc. Application No. 89 of 2018)
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Red Cross Society v Mbondo Katheke Mwania [2020] KECA 238 (KLR)", Case Analysis (2020). Civil Application No. 35 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/238/eng@2020-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.