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Court of AppealDismissedCivil Application E285 of 2021· [2022] KECA 882 (KLR)

Roysambu Distributors Limited v Kenya Breweries Limited

Court of Appeal
10 June 2022
KMK M'InotiFSF SichaleSKS Ole Kantai
1,541 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Roysambu Distributors Limited applied under Rule 5(2)(b) of the Court of Appeal Rules for a temporary stay of execution of a judgment and decree of the High Court (Majanja, J) dated 26th March 2021 in HCCC No. Comm 648 of 2005, in which Kshs 7,541,480 was entered against it after its claim was dismissed ex-parte on 10th February 2021. The applicant's director deposed that he knew the hearing date but could not participate because the court failed to connect him through the cause-list video link, and that the dismissal without a hearing violated Article 50 of the Constitution. The respondent opposed, arguing the applicant approached the court with unclean hands, the appeal was not arguable, and the respondent, a going concern, could refund the decretal amount if the appeal succeeded. Applying the settled twin principles from Stanley Kangethe Kinyanjui v Tony Ketter & Others, the Court of Appeal (M'Inoti, Sichale and Ole Kantai, JJA) held that the applicant failed on both limbs: no evidence supported the claimed connection failure, the record showed the applicant was accorded several chances to be heard which it did not utilise, and the alleged serious issues of law were not stated. On the nugatory limb, the respondent's status as a large going concern capable of refunding the decretal amount meant the appeal would not be rendered nugatory. The motion was dismissed in its entirety with costs to the respondent.

Key legal issues

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01

Arguability of the intended appeal

Holding

The applicant failed to demonstrate an arguable appeal; the record showed it was accorded chances to be heard which it did not utilise, and no evidence supported the claim of a failed video link.

Reasoning

The applicant alleged violation of Article 50 and a failure by the court to connect it via the cause-list link, but tendered no evidence. The record showed several chances to be heard were given and unused, and the alleged serious issues of law were never stated.

p. 3
02

Nugatory effect of execution

Holding

The appeal would not be rendered nugatory because the respondent is a going concern able to refund the decretal amount if the appeal succeeds.

Reasoning

The respondent is one of the largest companies in the country with a high turnover, and it was not demonstrated that it could not refund the decretal amount if the appeal succeeded; damages would therefore compensate the applicant.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both twin principles: an arguable appeal and that the appeal will be rendered nugatory absent stay.
  • An arguable appeal need not be one that must succeed; a single bona fide arguable ground suffices.
  • Nugatory effect depends on whether what is sought to be stayed is reversible or compensable in damages.

Court orders

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  1. 1.The applicant's motion dated 12th August 2021 is dismissed in its entirety with costs to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75
  • Constitution of KenyaArticle 50

Cases cited (1)

  • Stanley Kangethe Kinyanjui vs. Tony Ketter & Others
    [2013] eKLR

    Summary of principles governing Rule 5(2)(b) applications: arguable appeal and nugatory effect.

On appeal from
High Court of Kenya
HCCC No. Comm 648 of 2005
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, "Roysambu Distributors Limited v Kenya Breweries Limited", Case Analysis (2022). Civil Application E285 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/882/eng@2022-06-10

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