Henry Kandie - Chief Inspector of Police, OCS Ongata Rongai Police Station & 9 others v Mohammed Feisal & 19 others [2020] KECA 877 (KLR)
The bottom line
#Kenya's Court of Appeal paused payment of a Kshs.9.5 million+ police brutality judgment, confirming courts will grant stays where winning respondents can't repay the money.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The Court found the draft memorandum of appeal raised arguable points, including joint and several liability of the applicants and the award of damages to respondents who did not testify.
The Court perused the draft memorandum of appeal and identified two points: whether all applicants are jointly and severally liable for infringement of rights, and whether the judge was right to find in favour of parties and award damages when they did not testify. The Court held these were not frivolous but arguable points, sufficient to satisfy the first limb of the rule 5(2)(b) test without requiring the appeal to succeed.
Whether the intended appeal would be rendered nugatory absent stay
The Court was satisfied the appeal would be rendered nugatory because the respondents had not shown ability to repay sums in excess of Shs.9,500,000 if the appeal succeeded.
The respondents' counsel filed a notice to show cause in excess of Shs.9,500,000, and the 20th respondent did not address the Court on the respondents' ability to repay should the intended appeal succeed. The Court held that the respondents had not shown they could repay the monies, which was not a small sum, satisfying the second limb of the stay test.
Legal principles established
#- An applicant for stay of execution pending appeal must demonstrate that the appeal or intended appeal is arguable, and if successful on that limb, must also show that the appeal would be rendered nugatory absent stay.
- An arguable appeal is one that is not frivolous; an arguable point need not be one that must succeed.
Court orders
#- 1.Stay of execution of the judgment of the High Court of Kenya at Kajiado in Constitutional Petition No. 14 of 2017 pending the hearing and determination of the intended appeal
- 2.Applicants to file the appeal within 30 days of the ruling
- 3.Costs of the motion to await hearing and determination of the intended appeal
- On appeal from
- High Court of Kenya at Kajiado
- Constitutional Petition No. 14 of 2017
- 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, "Henry Kandie - Chief Inspector of Police, OCS Ongata Rongai Police Station & 9 others v Mohammed Feisal & 19 others [2020] KECA 877 (KLR)", Case Analysis (2020). Civil Application No. 318 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/877/eng@2020-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.