Kenya Power & Lighting Company Ltd v Joseph Nzyoki Mwanthi [2020] KECA 399 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Test for grant of stay under Rule 5(2)(b)
The applicant must satisfy the twin principles of arguability and nugatory effect.
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.
Arguability of the intended appeal
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.
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.
Nugatory effect
Uncontroverted assertion that the respondent could not refund the decretal sum if executed and the appeal succeeded satisfied the nugatory limb.
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.
Legal principles established
#- 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
#- 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.Costs of the application to abide the outcome of the intended appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.