Co-operation (Group) Co. Ltd v Gilbert Charo Mshanga
The bottom line
#Kenya's Court of Appeal halted execution of a Kshs.10 million land judgment because the winning party couldn't prove he could refund the money if the appeal succeeds.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable on the questions of how the awarded amounts were arrived at and whether the Judge properly exercised discretion in declining to set aside the judgment
The Court applied the settled test that an arguable appeal need not succeed. It identified live questions on the assessment of general damages and mesne profits, and on the exercise of discretion in refusing to set aside the ex parte judgment, concluding the appeal was not frivolous and met the first limb.
Nugatory value of the appeal
Execution was under way, vehicles had been proclaimed and partly auctioned, and the respondent did not demonstrate ability to refund the decretal amount; the appeal would be rendered nugatory absent stay
The Court held nugatory-ness is case-specific. Execution had commenced and vehicles were under threat of sale. The respondent's bare assertion of owning property valued at Kshs.24 million, without demonstrating how that valuation was arrived at, did not rebut the applicant's reasonable fear of inability to refund, so the burden-bearing test in Wasike applied in the applicant's favour.
Legal principles established
#- An arguable appeal need not necessarily succeed; it suffices that it is not frivolous
- Where an applicant reasonably fears a respondent cannot refund the decretal sum, the evidential burden shifts to the respondent to show his resources
Court orders
#- 1.Stay of execution of the judgment of the ELC delivered on 31st January 2019 pending the hearing and determination of the applicant's intended appeal
- 2.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- Environment and Land Court at Malindi
- ELC Case No. 245 of 2017
- 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, "Co-operation (Group) Co. Ltd v Gilbert Charo Mshanga", Case Analysis (2022). Civil Application E49 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/394/eng@2022-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.