University of Nairobi v Ricatti Business of East Africa [2020] KECA 463 (KLR)
The bottom line
#Kenya's Court of Appeal paused collection of a Ksh. 7.5 million judgment against the University of Nairobi because the appeal raised serious legal questions worth hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The Court found the memorandum of appeal raised poignant points of law, including the mandate of the Commission for Higher Education under the repealed Universities Act and the sufficiency of the termination notice, satisfying the arguability limb.
The Court perused the memorandum of appeal and identified substantive questions of law deserving determination, notably the scope of the Commission for Higher Education's mandate in accreditation of universities and whether the termination notice was sufficient. Relying on precedent, it reiterated that a single bona fide arguable ground suffices and that an arguable appeal need not necessarily succeed, only be non-frivolous and deserving of full argument.
Whether the appeal would be rendered nugatory if stay is denied
The Court held that the nugatory limb was satisfied because recovery of the decretal sum from the respondent, if the appeal succeeded, would be onerous and would expend further public resources; deposit of the judgment sum in Court as security removed any prejudice to the respondent.
The test is whether what is sought to be stayed is reversible, or if not, whether damages would reasonably compensate the aggrieved party. The applicant did not allege impecuniosity but argued difficulty of refund. The Court accepted that recovering the money would be onerous and involve expending more public resources. Since the applicant offered to deposit the decretal sum in Court, the respondent would suffer no prejudice, as the money would be released to the successful party after the appeal.
Legal principles established
#- In a Rule 5(2)(b) application the Court exercises original and discretionary jurisdiction, not an appeal from the trial judge's discretion, and must be satisfied both that the appeal is arguable and that it would be rendered nugatory if stay is denied.
- An applicant for stay need only raise a single bona fide arguable ground of appeal; a multiplicity of grounds is not required.
- An arguable appeal is one that is not frivolous and ought to be argued fully; it need not necessarily succeed.
- Where an applicant alleges that an appeal will be rendered nugatory because of a respondent's impecunity, the onus shifts to the respondent to rebut that allegation by evidence.
Court orders
#- 1.Stay of execution of the entire judgment of the High Court (F. Tuiyott, J.) dated 6th December 2019 in HCCC No. 73 of 2015 pending hearing and determination of the appeal
- 2.The applicant to deposit Ksh. 7,492,550.00 in Court pending the hearing and determination of the appeal
- 3.Costs of the application to the applicant, costs in the appeal
- On appeal from
- High Court of Kenya at Nairobi (Commercial and Admiralty Division)
- HCCC No. 73 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kabundu Holdings Limited v Wakf Commissioner of Kenya (Civil Appeal (Application) E039 of 2025) [2026] KECA 752 (KLR)[2026] KECA 752 (KLR)24 Apr 2026
- Mbogoh v Chironda (Civil Application E012 of 2024) [2025] KECA 1098 (KLR)[2025] KECA 1098 (KLR)20 Jun 2025applied
Cite this brief
#Cite this brief
Caselaw, "University of Nairobi v Ricatti Business of East Africa [2020] KECA 463 (KLR)", Case Analysis (2020). Civil Application No. 40 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/463/eng@2020-08-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.