Hassan v Ali & 3 others (Civil Application E046 of 2021) [2021] KECA 190 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause rent and payment orders because any money paid could be recovered if the appeal later succeeded.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
Yes. The grounds all raise the issue of jurisdiction in light of section 6 of the Arbitration Act, which is not frivolous.
The applicant exhibited a draft memorandum of appeal whose six grounds all rested on jurisdiction - that the joint venture agreement and lease provided for arbitration and the judge erred in granting interim orders. The Court held it would be premature to make definitive findings on jurisdiction at the interlocutory stage, but the issue could not be said to be frivolous, so arguability was satisfied.
Whether the intended appeal would be rendered nugatory if stay is not granted
No. The orders - payment of rent, accounting, and deposit of goodwill monies in a joint account - are reversible and any monies paid can be recovered, with no allegation that the 1st respondent would be unable to refund.
The Court examined the impugned orders: apart from the joinder, they required the applicant to pay rent, render quarterly accounts and deposit goodwill monies into a joint bank account. Execution of such orders would not render the appeal nugatory because the orders are reversible; if the applicant succeeded on his jurisdictional challenge, the orders would simply be set aside and monies paid recovered.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin requirements that the appeal is arguable and that it would be rendered nugatory if the orders sought are not granted; both must be satisfied.
- A single bona fide arguable ground of appeal suffices to satisfy the arguability requirement; the ground need not succeed but must not be frivolous.
- Nugatory means useless, futile or trifling, and depends on whether what is sought to be stayed would be irreversible or, if reversible, whether damages would reasonably compensate the aggrieved party.
Court orders
#- 1.The applicant's notice of motion dated 12th February 2021 seeking stay of execution and stay of proceedings is dismissed
- 2.Costs of the motion to the 1st respondent
- On appeal from
- Environment and Land Court
- Not stated in the judgment
- 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, "Hassan v Ali & 3 others (Civil Application E046 of 2021) [2021] KECA 190 (KLR)", Case Analysis (2021). Civil Application E046 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/190/eng@2021-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.