Laser Eye Centre Limited v PBM Nominees Limited [2020] KECA 555 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause taxation of KSh 3.1 million in costs because the applicant could not show it would lose the money forever if the appeal later succeeded.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal was arguable; the contention that the trial judge erred in awarding costs against the applicant despite the court's own delay in delivering the ruling raised an arguable point.
The Court applied the settled principle that an arguable appeal need not have high chances of success; it is enough that it raises issues deserving full consideration on appeal. The applicant's complaint that the application, filed timeously and certified urgent, was not determined until the wrong complained of had dissipated, and that costs were nonetheless awarded, was held to be an arguable point fit for consideration at the hearing of the appeal.
Whether the intended appeal would be rendered nugatory if taxation of costs is not stayed
The nugatory limb was not satisfied: apart from stating the amount of the bill, the applicant showed neither the respondent's inability to refund costs nor the loss it would suffer if it had to settle costs before the appeal was heard.
The Court noted that the appeal was already filed and the costs not yet taxed, so any sums paid would be recoverable if the appeal succeeded. The applicant merely stated the amount of the bill without demonstrating the respondent's incapacity to refund or any prejudice from settling costs first. As the two limbs are conjunctive, failure on the second doomed the application.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory limbs, which are conjunctive; a single bona fide arguable ground suffices on arguability, and nugatory turn on whether what is sought to be stayed is reversible or compensable in damages.
- On an application under Rule 5(2)(b), the court must not make definitive or final findings of fact or law that would embarrass the hearing of the main appeal.
- An appeal will not be rendered nugatory merely because a party can refund sums paid out; the applicant must demonstrate the other party's inability to repay or the loss it would suffer.
Court orders
#- 1.The application for stay of the Ruling and Order of the Environment and Land Court dated 27th November 2018 pending the intended appeal was dismissed
- 2.The applicant to pay costs of the application in the appeal
- On appeal from
- Environment and Land Court of Kenya at Nairobi
- E.L.C. Misc. Application No. 192 of 2018
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rules 5(2)(b) and 42 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Laser Eye Centre Limited v PBM Nominees Limited [2020] KECA 555 (KLR)", Case Analysis (2020). Civil Application No. Nai. 238 of 2019 (UR 218/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/555/eng@2020-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.