County Secretary County Government of Busia v Manwari & Co. Advocates (Civil Application 20 of 2021) [2021] KECA 468 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop execution of a Sh7.8 million fee decree against Busia County because a stay requires two conditions, and the county only met one.
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 under Rule 5(2)(b) of the Court of Appeal Rules
- 2.Whether the appeal will be rendered nugatory if stay is not granted
Key legal issues
#Whether the twin prerequisites for relief under Rule 5(2)((b) were met
The arguable-appeal prerequisite was satisfied but the nugatory prerequisite was not, because the applicant did not rebut the respondent's averments that execution depends on default under the consent and that monies paid are repayable; both prerequisites must be met, so the application failed.
The Court adopted the crystallised principles in Stanley Kangethe Kinyanjui vs. Tony Ketter. It found the draft grounds of appeal arguable notwithstanding their ultimate prospects. On the nugatory limb, the respondent's unchallenged assertions - a consent governing liquidation, no imminent execution absent default, and capacity to refund - were accepted. Lack of rebuttal by the applicant was held sufficient basis to find the second prerequisite unsatisfied. Since relief requires both limbs, the motion was dismissed with costs.
The scope of the overriding objective and ancillary provisions invoked
Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rule 42 are not independent substantive bases for stay; they merely donate power to discharge the Court's mandate with greater latitude, and the relief is governed substantively by Rule 5(2)(b).
The Court noted that Rule 42 is merely procedural, that section 3 donates power to discharge its mandate under the Act, and that sections 3A and 3B enshrine the overriding objective. It characterised the overriding objective as simply donating power to the Court to discharge its mandate with greater latitude, and proceeded to determine the motion on the substantive Rule 5(2)(b) criteria.
Legal principles established
#- Both prerequisites under Rule 5(2)(b) - an arguable appeal and the nugatory aspect - must be satisfied before stay relief can be granted; satisfying only one is insufficient.
- An arguable appeal need not necessarily succeed; it suffices that it is not frivolous and raises a bona fide issue, and a single bona fide arguable ground is enough.
- Nugatory-ness turns on whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party.
Court orders
#- 1.The application for stay of execution is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Busia H.C.C.A No. 16 of 2018
- Jurisdiction invoked
- Sections 3, 3A and 3B of the Appellate Jurisdiction Act; Rules 5(2)(b) and 42 of the Court of Appeal Rules
Relief refused
#Stay of execution of the ruling of K. W. Kiarie, J. dated 12th March, 2020 pending the intended appeal
Only one of the two prerequisites under Rule 5(2)(b) was satisfied; the nugatory prong failed because the applicant did not rebut the respondent's contention that any payment is recoverable and execution only follows default on the consent
Costs
The application 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 position in law is that both prerequisites must be satisfied before a party can be granted relief under Rule 5(2)(b) of the Court of Appeal Rules. Since only one prerequisite has been satisfied, the application is unsustainable.
In law an arguable appeal is not one which must necessarily succeed, but one which is not frivolous but raises a bona fide issue that can be argued fully before the Court.
A single bona fide arguable ground of appeal is sufficient to satisfy this requirement.
In the result and on the basis of the above assessment and reasoning, we find no merit in the application. It is accordingly dismissed with costs to the respondent.
Issues in the judgment
#The judgment contains internally inconsistent dates for the High Court rulings, describing the impugned ruling variously as dated 12th March, 2020 and 12th March, 2019, and the earlier ruling as of 25th March, 2019 and 25th March, 2020.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Secretary County Government of Busia v Manwari & Co. Advocates (Civil Application 20 of 2021) [2021] KECA 468 (KLR)", Case Analysis (2021). Civil Application No. 20 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/468/eng@2021-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.