Alfred Mincha Ndubi v Standard Limited [2020] KECA 795 (KLR)
The bottom line
#The Court of Appeal refused to freeze a Kshs 4 million defamation payout because money that can be refunded is not at risk of being lost forever.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether the intended appeal will be rendered nugatory if an injunction is not granted and the appeal succeeds
Key legal issues
#Whether the intended appeal was arguable
The intended appeal was arguable because it raised non-frivolous points, including whether the tort of defamation was proved to the required standard.
The court perused the draft memorandum of appeal and found the grounds - that the learned Judge erred in finding the elements of defamation unproved and in assessing evidence from the criminal acquittal - raised arguable points. The court stressed it could not go into the merits at this stage; a single arguable ground suffices and an arguable appeal need not succeed, only merit consideration.
Whether the intended appeal would be rendered nugatory if the injunction was not granted
The appeal would not be rendered nugatory because, if the applicant refunded the monies paid and his appeal eventually succeeded, he would be refunded any monies due, and there was no assertion that the respondent was incapable of making such refund.
Applying Reliance Bank v Norlake, nugatory factors are considered case by case weighing the conflicting claims of both sides. The applicant feared loss of property and civil jail, but the court found that if he refunded the monies and the appeal succeeded, he would be repaid; the respondent, which had previously paid the decree without difficulty, was not shown incapable of refunding. Hardship was thus not weighted in the applicant's favour.
Legal principles established
#- An application under Rule 5(2)(b) requires the applicant to establish both limbs - that the appeal is arguable and that it will be rendered nugatory if the order is not granted; failure on either limb is fatal.
- In dealing with Rule 5(2)(b), the Court exercises original and discretionary jurisdiction and that exercise does not constitute an appeal from the judge's discretion.
Court orders
#- 1.The notice of motion dated 8th July 2019 is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the leading ruling dismissing the Rule 5(2)(b) application: the intended appeal was arguable but the applicant failed to show it would be rendered nugatory if the injunction were refused.
The upshot is that I would decline to grant an injunction pending the hearing and determination of the intended appealp. 4
Wrote the judgment
Concurred in a separate short ruling, agreeing the applicant failed to meet the threshold and dismissing the motion with costs; delivered under Rule 32(3) as Githinji JA had retired.
I concur that the applicant has failed to meet the threshold for granting an order of injunction pending the hearing of his appeal.p. 4
- On appeal from
- High Court of Kenya at Nyamira
- H.C.C.A. No. 5 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, derived from Article 164(3) of the Constitution
Relief refused
#An injunction restraining the respondent from commencing recovery proceedings of the decretal amount of Kshs 4,000,000/- already paid out to the applicant, pending the hearing and determination of the intended appeal
The applicant demonstrated arguability but failed to establish that the appeal would be rendered nugatory if the application was dismissed and the appeal succeeded, as the respondent was capable of refunding the monies.
Costs
The notice of motion dated 8th July, 2019 is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The applicant has, therefore, failed to demonstrate the existence of both limbs as required by Rule 5(2)(b) of this Court's Rules.
An arguable appeal is not one that must necessarily succeed; it is simply one that is deserving of the court's consideration.
As the upshot is that I would decline to grant an injunction pending the hearing and determination of the intended appeal, to restrain the respondent from commencing recovery proceedings of the decretal amount of Kshs 4 million that had already been paid out to the applicant. As Hon. Okwengu JA is in agreement, the notice of motion dated 8th July, 2019 is dismissed with costs to the respondent.
Issues in the judgment
#The motion is described as dated 9th July 2019 in the opening paragraph but as dated 8th July 2019 in the supporting affidavit paragraph and in the final orders.
The application is framed as an injunction pending an intended appeal, yet parts of the submissions and the analysis discuss stay-of-execution concepts (refund of monies paid, security for the decretal sum), reflecting a conflation of injunction and stay remedies.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alfred Mincha Ndubi v Standard Limited [2020] KECA 795 (KLR)", Case Analysis (2020). Civil Application No. 74 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/795/eng@2020-04-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.