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Court of AppealDismissedCivil Application E011 of 2020· [2022] KECA 594 (KLR)

Sea Angel Services Ltd v Abdul

Court of Appeal
24 June 2022
1,641 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to halt execution because the decree no longer existed and costs can be repaid through damages.

What this practically means

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Executive summary

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The Applicant, Sea Angel Services Ltd, moved the Court of Appeal at Mombasa under Rule 5(2)(b) seeking a stay of execution of the decree in Mombasa CMCC 2957 of 2006 pending an intended appeal against the High Court's judgment in Civil Appeal No. 108 of 2013 (P.J. Otieno J.), which had set aside the subordinate court's judgment on limitation grounds and awarded the Respondent costs of both the suit and the appeal. The Respondent opposed, contending the application was defective for want of a valid Notice of Appeal. The Court first confirmed its jurisdiction, holding that the Notice of Appeal lodged on 17th May 2017 was within time, remained on record, and had not been shown to have been struck out, notwithstanding the dismissal of the Applicant's application to withdraw it. On the merits, applying the twin limbs in Stanley Kangethe Kinyanjui v Tony Ketter, the Court found the intended appeal arguable on the limitation issue, an issue of law meriting consideration. However, the Applicant failed the nugatory limb: the decree sought to be stayed had been set aside by the impugned judgment and was effectively non-existent; the impugned judgment was a negative order incapable of stay; and costs, being a money judgment, could be adequately compensated by damages if the appeal succeeded. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Jurisdiction premised on a valid Notice of Appeal

Holding

The Court was properly seized of the application because the Notice of Appeal lodged on 17th May 2017 was within time, remained on record, and there was no evidence it had been struck out.

Reasoning

Rule 5(2)(b) jurisdiction requires a notice of appeal lodged under Rule 75 within 14 days of the judgment. Although the Applicant had sought withdrawal of the notice and leave to file a fresh one, that application was dismissed by Warsame JA on 9th July 2021, leaving the original notice intact on record.

p. 2
02

Arguable appeal limb

Holding

The intended appeal was arguable because the Applicant raised the issue of limitation, an issue of law meriting consideration by the Court.

Reasoning

The Applicant need only demonstrate one arguable ground. The contention that the High Court erred in addressing limitation of time, which had not been raised on appeal, was held to be an issue of law meriting consideration, satisfying the first limb of the Kinyanjui v Ketter test.

p. 3
03

Nugatory-appeal limb

Holding

The Applicant failed the second limb: the decree sought to be stayed no longer exists, the impugned judgment was a negative order incapable of stay, and costs are a money judgment adequately compensable by damages.

Reasoning

Whether an appeal is rendered nugatory depends on whether what is sought to be stayed is reversible, or if not, whether damages will compensate. The subordinate court decree had been set aside and was non-existent; the High Court judgment was a negative order; and costs, being a money judgment, can be recovered by damages if the appeal succeeds.

p. 3

Legal principles established

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  • The Court of Appeal is properly seized of an application for stay of execution under Rule 5(2)(b) only where a notice of appeal has been lodged in accordance with Rule 75, within 14 days of the judgment appealed against.
  • A negative order of a court is incapable of being stayed.
  • On the arguable-appeal limb, an applicant need only demonstrate one arguable ground, and an arguable appeal is not necessarily one that will succeed.

Court orders

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  1. 1.The Notice of Motion dated 27th October 2020 is dismissed with costs to the Respondent
On appeal from
High Court at Mombasa
Mombasa High Court Civil Appeal No. 108 of 2013
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, premised on a notice of appeal lodged under Rule 75

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, "Sea Angel Services Ltd v Abdul", Case Analysis (2022). Civil Application E011 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/594/eng@2022-06-24

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