Joseph Njuguna Thairu v County Secretary, Nairobi City County & 2 others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
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
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.
Whether the appeal would be rendered nugatory if the stay were refused
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
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.
Legal principles established
#- 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
#- 1.The application dated 5th June 2020 seeking stay of execution of the High Court judgment of 14th May 2020 is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.