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Court of AppealDismissedCivil Application No. 145 of 2020· [2021] KECA 501 (KLR)

Joseph Njuguna Thairu v County Secretary, Nairobi City County & 2 others

Court of Appeal
4 June 2021
2,007 words in judgment
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The bottom line

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The Court of Appeal refused to pause a High Court costs order against Thairu because he showed only an arguable appeal, not that the appeal would be wasted without a stay.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi on a Notice of Motion dated 5th June 2020 brought under Rule 5(2)(b) of the Court of Appeal Rules, 2010 by Joseph Njuguna Thairu, seeking a stay of execution of the judgment of the High Court (J. M. Mativo, J) of 14th May 2020 in Judicial Review Miscellaneous Application No. 182 of 2019, which dismissed his bid for mandamus to compel Nairobi City County officials to pay a decretal balance and taxed costs, and stayed further proceedings pending an intended appeal. The respondents opposed, arguing the application was incompetent, that the dismissal order was negative and incapable of being stayed, and that the applicant had not proved any bill of costs or intention to tax. Applying the settled principles from Stanley Kangethe Kinyanjui vs. Tony Ketter, the Court found the draft grounds of appeal - which faulted the trial judge for upholding section 21 of the Government Proceedings Act and procedural technicalities - arguable, satisfying the first prerequisite. However, the applicant's sole basis for the nugatory aspect was fear of taxation and execution of costs, which the respondents' unrebuted assertion that no bill of costs had been filed defeated. Since both prerequisites under Rule 5(2)(b) must be satisfied, the application failed and was dismissed with costs to the 1st and 2nd respondents.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court found the seven draft grounds of appeal, including the contention that the trial judge erred in holding the judicial review motion incompetent under section 21 of the Government Proceedings Act and Order 29 Rule 3 of the Civil Procedure Rules, to be arguable

Reasoning

The applicant relied on the annexed memorandum of appeal to demonstrate an intended arguable appeal. The Court reiterated that an arguable appeal is not one that must succeed, but one that is not frivolous and raises a bona fide arguable issue. A single bona fide arguable ground suffices. On that basis the first prerequisite of the Rule 5(2)(b) test was satisfied.

p. 3
02

Whether the appeal would be rendered nugatory if the stay were refused

Holding

The nugatory prerequisite was not satisfied because the applicant's only basis - fear that the respondents would tax and execute costs - was speculative and unrebutted evidence showed no bill of costs had been filed

Reasoning

The applicant's sole ground for the nugatory aspect was the fear that the respondents would tax and execute the costs awarded against him. The respondents asserted, without rebuttal, that no bill of costs had been filed and none was intended. A stay application cannot rest on speculation; since only one of the two prerequisites was met, the application had to fail.

p. 3

Legal principles established

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  • An arguable appeal need not be one that will succeed; a single bona fide arguable ground suffices to satisfy the first prerequisite under Rule 5(2)(b)
  • Both prerequisites under Rule 5(2)(b) - an arguable appeal and the nugatory aspect - must be satisfied before a stay can be granted; satisfying only one is insufficient
  • The nugatory test depends on whether what is sought to be stayed is reversible or, if irreversible, whether damages will reasonably compensate the aggrieved party

Court orders

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  1. 1.The application dated 5th June 2020 seeking stay of execution of the High Court judgment of 14th May 2020 is dismissed
  2. 2.Costs of the application are awarded to the 1st and 2nd respondents who prosecuted the application
On appeal from
High Court of Kenya (Judicial Review Division)
JR Misc. Civil Application No. 182 of 2019
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2010, supported by sections 3, 3A and 3B of the Appellate Jurisdiction Act (Cap 9) and Order 42 Rule 6(1) of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Njuguna Thairu v County Secretary, Nairobi City County & 2 others", Case Analysis (2021). Civil Application No. 145 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/501/eng@2021-06-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.