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Court of AppealDismissedCivil Application No. 75 of 2019

Kenya National Highway Authority v Moses Kipkoech Rotich & 7 others [2021] KECA 856 (KLR)

Court of Appeal
19 March 2021
1,311 words in judgment
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The bottom line

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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

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Executive summary

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The Kenya National Highway Authority (applicant) moved the Court of Appeal at Nyeri under Rule 5(2)(b) of its Rules for a stay of execution of a judgment of Mumbi Ngugi, J. of the High Court at Kericho dated 1st November 2018 in Kericho Petition No. 14 of 2016. The High Court had declared the impounding and detention of the 1st respondent's motor vehicle KAX 304C from 3rd December 2016 to 13th October 2017 illegal, an abuse of the criminal justice system and a violation of Articles 40, 47 and 50 of the Constitution, and awarded damages of Kshs.3,000,000. The applicant argued the intended appeal was arguable on jurisdictional grounds, namely non-compliance with the 30-day statutory notice under Section 67 of the Kenya Roads Act, and that the appeal would be rendered nugatory because the 1st respondent lacked means to refund the decretal sum if paid. The 1st respondent countered that the appeal was not arguable, that the statutory notice point was neither pleaded nor canvassed at trial, and that he owned properties, including L.R No. Kericho/Kapsurer/7162 valued at over Kshs.22,000,000, sufficient to refund the sum. Applying the settled twin test, the court found the appeal arguable on the single statutory-notice ground but held the nugatory limb failed, the applicant having not rebutted the 1st respondent's evidence of means. The application was dismissed with costs to the 1st respondent. The decision of the High Court was not disturbed; the intended appeal remains pending.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The court found the appeal arguable on the single ground of absence of the statutory notice under Section 67 of the Kenya Roads Act

Reasoning

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.

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02

Whether the appeal would be rendered nugatory absent a stay

Holding

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

Reasoning

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.

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Legal principles established

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  • 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

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  1. 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

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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, "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.