Central Bank of Kenya v Makhecha & Company Advocates & 1 other
The bottom line
#Kenya's Court of Appeal paused the Central Bank of Kenya paying Kshs.12 million in interest to a law firm until its appeal is decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable despite the absence of an annexed draft memorandum of appeal
The court held the appeal arguable on the question of entitlement to interest and the date from which it should be computed, assessing arguability from the motion and affidavit.
Although the applicant did not annex a draft memorandum of appeal, the court relied on precedent permitting assessment of arguability from the grounds set out on the face of the motion and the supporting affidavit. It found that whether the respondent was entitled to interest on the taxed amount and from what date were issues warranting consideration on appeal.
Whether execution of the interest award would render the intended appeal nugatory
The court found the applicant's apprehension well founded given the respondent's impecuniosity evidenced by an unsatisfied garnishee order nisi, and the respondent's failure to demonstrate ability to restitute.
Both parties questioned the other's ability to pay the interest; the legal duty fell on each to establish its contention. The warrants showed interest of Kshs.12,024,493, and a garnishee order nisi for Kshs.10,000,000 against the respondent remained unpaid. The burden shifted to the respondent, which failed to discharge it, while nothing supported its allegation against the applicant.
Legal principles established
#- An applicant under Rule 5(2)(b) must establish the twin principles that the intended appeal is arguable and that it would be rendered nugatory if the orders sought are not granted.
- Arguability of an intended appeal may be assessed from the grounds on the face of the motion and supporting affidavit even where no draft memorandum of appeal is annexed.
- Where an applicant raises the respondent's inability to refund decretal sums, the burden shifts to the respondent to demonstrate its ability to restitute if the appeal succeeds.
Court orders
#- 1.Stay of execution of the ruling dated 12th June 2020 pending the lodging and determination of the intended appeal
- 2.Costs of the motion to abide by the outcome of the intended appeal
- On appeal from
- High Court of Kenya at Nairobi
- Misc. Application No. 296 of 2012
- 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, "Central Bank of Kenya v Makhecha & Company Advocates & 1 other", Case Analysis (2021). Civil Application No. E026 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/437/eng@2021-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.