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Court of AppealAllowedCivil Application No. 57 of 2020· [2020] KECA 399 (KLR)

Kenya Power & Lighting Company Ltd v Joseph Nzyoki Mwanthi [2020] KECA 399 (KLR)

Court of Appeal
7 August 2020
697 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 stopped Kenya Power from paying a Kshs. 962,000 judgment until its appeal is decided, showing how courts grant stay orders in Kenya.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Nairobi (Gatembu Kairu, Mohammed and ole Kantai, JJ.A) on an application dated 27th February 2020 under Rule 5(2)(b) of the Court of Appeal Rules by Kenya Power & Lighting Company Ltd seeking stay of execution of the judgment of the High Court (Ong'injo, J.) delivered on 21st January 2020 in High Court Civil Appeal No. 257 of 2011, pending an intended appeal. The High Court had partially allowed the applicant's appeal from a magistrate's court decision awarding the respondent Kshs. 962,000.00 as damages for alleged loss of rent following alleged wrongful electricity disconnection. The applicant also sought that the Kshs. 962,000.00 deposited in the High Court in 2002 as security for stay continue to be held pending the intended second appeal. The application was unopposed. The court applied the settled twin test under Rule 5(2)(b) as stated in Ishmael Kagunyi Thande v Housing Finance Company of Kenya Ltd: the applicant must show the intended appeal is arguable and that it would be rendered nugatory if stay is refused. The court found arguable the contention that the magistrate's court lacked jurisdiction, the Energy Regulatory Commission being vested with mandate over such disputes under Sections 4 and 61 of the Energy Act. The nugatory limb was satisfied by the uncontroverted assertion that the respondent could not refund the decretal sum if executed. The application was allowed in terms of prayers 2 and 3, with the High Court judgment stayed pending the intended appeal, and costs of the application to abide the outcome of that appeal.

Key legal issues

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01

Test for grant of stay under Rule 5(2)(b)

Holding

The applicant must satisfy the twin principles of arguability and nugatory effect.

Reasoning

The court restated the settled test from Ishmael Kagunyi Thande: jurisdiction under rule 5(2)(b) is original and discretionary, guided by two well-settled principles - the appeal or intended appeal must be arguable, and the success of the appeal must be rendered nugatory if stay is not granted. Both limbs must be demonstrated for the application to succeed.

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02

Arguability of the intended appeal

Holding

The contention that the magistrate's court lacked jurisdiction, the Energy Regulatory Commission having mandate under the Energy Act to determine such disputes, was arguable.

Reasoning

The applicant's legal officer deponed that the learned Judge erred in failing to appreciate that the magistrate's court lacked jurisdiction over the respondent's claim, Sections 4 and 61 of the Energy Act No. 12 of 2006 vesting the mandate to determine such disputes in the Energy Regulatory Commission. The court found this, amongst other complaints in the draft memorandum of appeal, arguable.

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03

Nugatory effect

Holding

Uncontroverted assertion that the respondent could not refund the decretal sum if executed and the appeal succeeded satisfied the nugatory limb.

Reasoning

On the second limb, the applicant asserted, without contradiction, that if the High Court decree were executed, the respondent would not be in a position to refund the decretal sum. This uncontroverted assertion persuaded the court that the appeal would be rendered nugatory absent a stay, justifying the orders sought.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that it will be rendered nugatory if stay or injunction is not granted.

Court orders

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  1. 1.Stay of execution of the judgment of the High Court in HCCA No. 257 of 2011 delivered on 21st January 2020 pending the hearing and determination of the intended appeal (prayers 2 and 3 of the application dated 27th February 2020)
  2. 2.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Energy Act No. 12 of 2006Sections 4 and 61

Cases cited (1)

  • Ishmael Kagunyi Thande vs. Housing Finance Company of Kenya Limited
    Civil Application No. 157 of 2006 [2007] eKLR
On appeal from
High Court of Kenya at Nairobi
High Court Civil Appeal No. 257 of 2011
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, "Kenya Power & Lighting Company Ltd v Joseph Nzyoki Mwanthi [2020] KECA 399 (KLR)", Case Analysis (2020). Civil Application No. 57 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/399/eng@2020-08-07

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