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Court of AppealDismissedCivil Application 212 of 2015

GAOO v JRO

Court of Appeal
28 April 2022
1,853 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to pause a matrimonial property case because the applicant could not show the appeal would be pointless if the trial continued.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Nambuye, Sichale and ole Kantai, JJA) on a Notice of Motion dated August 3, 2015 seeking a stay of all further proceedings in Nairobi HCCC No. 61 of 2011 (O.S) pending an intended appeal against a ruling of Musyoka, J dated July 3, 2015. The High Court had allowed the respondent's application to amend her originating summons in a matrimonial property dispute, substituting the description of the property said to be No. 96 Ndorobo Road, Langata with L.R No. 128xxxxx in Karen. The applicant contended the amendment was intended to defeat his defence of disclaimer of ownership. The application was brought under section 3A of the Appellate Jurisdiction Act and Rules 5(2)(b), 41 and 47 of the Court of Appeal Rules, 2010. The Court held that its Rule 5(2)(b) jurisdiction is original, independent and discretionary and arises only where a notice of appeal has been lodged; it found the notice of appeal filed under Rule 75 was in place, so jurisdiction was properly invoked. Adopting the principles in Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others, the Court found the grounds in the memorandum of appeal arguable, satisfying the first limb. However, on the nugatory limb, it held that any inconvenience from the amendment was compensable by costs, by corresponding leave to amend the defence, and by evidence in rebuttal, and the applicant had not asserted otherwise. Both limbs not being satisfied, the application was dismissed with costs to the respondent. The intended appeal itself was not before the Court and the High Court decision was not disturbed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court's jurisdiction under Rule 5(2)(b) was properly invoked, there being a notice of appeal on record
  2. 2.Whether the intended appeal is arguable
  3. 3.Whether the intended appeal would be rendered nugatory if stay of proceedings is not granted

Key legal issues

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01

Invocation of jurisdiction under Rule 5(2)(b)

Holding

Jurisdiction was properly invoked as a notice of appeal dated July 6, 2015 and lodged on July 10, 2015 was on record in accordance with Rule 75.

Reasoning

The Court restated that Rule 5(2)(b) jurisdiction is original, independent and discretionary, and only arises where a notice of appeal has been lodged. It found the notice of appeal filed in accordance with Rule 75 and anchored the application on it, distinguishing the respondent's argument under Rule 83 about the competence of the notice.

02

Arguability of the intended appeal

Holding

The grounds of appeal in the memorandum of appeal were arguable, notwithstanding their ultimate success or otherwise.

Reasoning

The Court examined the grounds challenging the High Court's allowance of the amendment of pleadings and substitution of the matrimonial property description. It held that the usual mode of demonstrating arguability is a draft or memorandum of appeal, and that a memorandum of appeal was already on record even though the appeal itself was not filed.

p. 3
03

Whether the intended appeal would be rendered nugatory

Holding

The nugatory limb failed because any prejudice from the amendment is compensable by costs, by corresponding leave to amend the defence, and by evidence in rebuttal.

Reasoning

The respondent had only sought to amend pleadings, with corresponding leave for the applicant to amend his defence. The applicant did not assert that the respondent could not make good any compensation by costs, nor that he would lack an opportunity to amend his defence or adduce rebuttal evidence. Both limbs of Rule 5(2)(b) therefore failed.

p. 3

Legal principles established

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  • The Court's jurisdiction under Rule 5(2)(b) is original, independent and discretionary, and arises only where a notice of appeal has been lodged.
  • An applicant under Rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal will be rendered nugatory if relief is not granted.
  • An arguable appeal need not necessarily succeed; it is one that warrants the Court's interrogation and a response from the opposite party.

Court orders

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  1. 1.The application for stay of proceedings pending the hearing and determination of the intended appeal is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Nairobi HCCC No. 61 of 2011 (O.S)
Jurisdiction invoked
Section 3A of the Appellate Jurisdiction Act and Rules 5(2)(b), 41 and 47 of the Court of Appeal Rules, 2010

Relief refused

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Stay of all further proceedings in Nairobi High Court Civil Suit No. 61 of 2011 (O.S) pending the intended appeal

The applicant failed to satisfy both limbs of Rule 5(2)(b); the appeal was arguable but would not be rendered nugatory since any prejudice is compensable by costs and by leave to amend his defence and adduce rebuttal evidence

p. 4

Costs

The application is dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is now trite that the Court's exercise of its mandate under this rule is original, independent and discretionary.
p. 3Nature of Rule 5(2)(b) jurisdiction
An arguable appeal is not one that must necessarily succeed but one that warrants not only the Court's interrogation but also the Court's invitation to the opposite party to make a response thereto.
p. 3Definition of an arguable appeal
In light of the totality of the above assessment and reasoning, the application is hereby dismissed with costs to the respondent.
p. 4Final orders - dismissal of the application

Issues in the judgment

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minor

Conflicting dates for the notice of appeal

minor

The same notice of appeal is later dated differently

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, "GAOO v JRO", Case Analysis (2022). Civil Application 212 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/686/eng@2022-04-28

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