Kenya National Highway Authority v Moses Kipkoech Rotich & 7 others [2021] KECA 856 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop payment of Kshs.3 million damages to a motorist, ruling KeNHA failed to prove the respondent couldn't refund the money if the appeal succeeded.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The court found the appeal arguable on the single ground of absence of the statutory notice under Section 67 of the Kenya Roads Act
The applicant alleged that the 1st respondent did not issue the 30-day statutory notice required by Section 67 of the Kenya Roads Act before filing the petition, raising a bona fide question of jurisdiction. The court held that only one arguable issue suffices and that it is for the appeal bench to determine whether it succeeds.
Whether the appeal would be rendered nugatory absent a stay
The court found the nugatory limb unsatisfied because the decree was monetary and the 1st respondent had demonstrated sufficient means to refund the decretal sum if the appeal succeeded
The 1st respondent swore he owned several properties, including L.R No. Kericho/Kapsurer/7162 valued at not less than Kshs.22,000,000, sufficient to refund the Kshs.3,000,000 decretal sum. The applicant did not rebut those averments. A money decree recoverable from a person of means does not render an appeal nugatory.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin test: the appeal is arguable and, if stay is not granted, the appeal will be rendered nugatory
- A single arguable point suffices to establish an arguable appeal, and it need not ultimately succeed
Court orders
#- 1.The application for stay of execution is dismissed with costs to the 1st respondent
- On appeal from
- High Court of Kenya at Kericho
- Kericho Petition No. 14 of 2016
- 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, "Kenya National Highway Authority v Moses Kipkoech Rotich & 7 others [2021] KECA 856 (KLR)", Case Analysis (2021). Civil Application No. 75 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/856/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.