Kihara v Ajele & 2 others (Civil Appeal E046 of 2021) [2021] KECA 104 (KLR)
The bottom line
#The Court of Appeal dismissed a stay application because the applicant couldn't prove the winning party couldn't repay the money if the appeal succeeded.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
Yes — the memorandum of appeal raised arguable points concerning the taxed sum and the failure of notice of delivery of the ruling; a single bona fide arguable ground suffices
The court reiterated that an arguable appeal is not one that must succeed but one that merits full consideration and is not frivolous or idle. On perusal of the application and memorandum of appeal it found some arguable points concerning the taxed sum and the failure of notice of delivery of the ruling, thereby satisfying the first limb.
Whether the appeal would be rendered nugatory if the stay is not granted
No — the applicant failed to demonstrate that the 3rd respondent would be unable to reimburse the decretal sum; the second limb was not satisfied
The court noted the applicant had varied the High Court's conditions without leave (depositing a bank guarantee for the whole sum instead of paying half in cash) and had not shown the respondent lacked means to repay. Her claims of bankruptcy, destitution and jeopardy to her parliamentary seat did not discharge the evidential burden of proving irrecoverability of the decretal sum.
Legal principles established
#- Rule 5(2)(b) applications are interlocutory preservation tools to protect the substratum of an intended appeal
- An applicant under Rule 5(2)(b) must establish the twin principles of an arguable appeal and that the appeal will be rendered nugatory if stay is not granted
- Once an applicant shows a reasonable fear that a respondent cannot repay the decretal sum, the evidential burden shifts to the respondent to disclose his resources
Court orders
#- 1.Dismissal of the Notice of Motion dated 13th August, 2021
- 2.Costs to abide the outcome of the appeal
- On appeal from
- High Court of Kenya (Nakuru)
- Nakuru Election Petition No. 2 of 2008 (associated proceedings)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010; Section 3A of the Appellate Jurisdiction Act; Section 1A of the Civil Procedure Act (Cap 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kihara v Ajele & 2 others (Civil Appeal E046 of 2021) [2021] KECA 104 (KLR)", Case Analysis (2021). Civil Appeal No E046 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/104/eng@2021-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.