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Court of AppealDismissedCivil Application E328 of 2021· [2022] KECA 903 (KLR)

Kakoompe v Ogola t/a Ogola Okello and CO. Advocate & 4 others

Court of Appeal
28 April 2022
HOHM OkwenguAMA Mbogholi-MsaghaKLKI Laibuta
1,541 words in judgment
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The bottom line

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The Court of Appeal refused to freeze KShs 16.8 million and a property because the applicant couldn't show his appeal had real grounds or faced irreversible loss.

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 (Okwengu, Mbogholi-Msagha and Laibuta, JJA) on an application under Rule 5(2)(b) of the Court of Appeal Rules for stay of execution and injunction pending an intended appeal against a ruling of Matheka, J. of the High Court at Nakuru delivered on 2 September 2021 in Nakuru Misc. Civil Application No. E028 of 2021, which dismissed the applicant's notices of motion dated 11 February 2021 and 12 March 2021 with costs. The applicant sought an injunction over property LR No. 8395 and suspension of withdrawal of KShs 16,800,000 held at KCB by the 1st respondent, a firm of advocates. The Court applied the settled twin test: the applicant must demonstrate that the intended appeal is arguable and that, if successful, it would be rendered nugatory absent the orders. On arguability, the applicant alleged the ruling denied him the right to be heard but failed to identify specific errors in the ruling, leaving the Court in the dark about the intended grounds. On the nugatory aspect, the applicant's interest in the property was unclear, he did not demonstrate irreversible loss, and the evidence indicated the funds may already have been disbursed before his application in the superior court. The respondents also argued, citing Western College and Jennifer Akinyi Osodo, that there was nothing to stay since the order below was a dismissal, a negative order incapable of execution. Both limbs failing, the application was dismissed with costs to the respondents.

Key legal issues

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01

Arguability of the intended appeal

Holding

The applicant failed to demonstrate any arguable ground, having not pointed to specific errors in the superior court's ruling

Reasoning

The applicant alleged the ruling offended the Constitution by denying him the right to be heard, but did not identify the specific errors supporting that averment. Without a draft memorandum or identified errors, the Court was left in the dark about the intended grounds, so the arguability limb failed.

p. 3
02

Nugatory aspect

Holding

The applicant failed to show irreversible loss; the funds may already have been disbursed and his interest in the property was unclear

Reasoning

The applicant's interest in LR No. 8395 was not clear from the evidence, he did not demonstrate injury from dealings with the property, and did not show that disbursement of the funds would be irreversible. Evidence suggested the funds had already been disbursed before his application in the superior court.

p. 3

Legal principles established

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  • Rule 5(2)(b) applications must satisfy the twin test of arguability and nugatory aspect
  • A single bona fide arguable ground suffices; an arguable appeal need not succeed but must not be frivolous
  • Failure to annex a draft memorandum of appeal is not fatal if arguability can be assessed from the grounds on the face of the application
  • The nugatory inquiry considers whether the subject matter is reversible and whether damages would be an adequate remedy, weighing consequences on both parties

Court orders

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  1. 1.The application for stay pending appeal is dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of Kenyaright to be heard (unspecified article)
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (9)

  • Western College of Arts and Applied Sciences v EP Oranga & 3 others
    [1976] eKLR

    No stay orders arise from dismissal where there is no positive order capable of execution

  • Jennifer Akinyi Osodo v Boniface Okumu Osodo & 3 others
    [2021] eKLR

    Substantial loss and nugatory issues do not arise from negative orders

  • Equity Bank Limited v West Link Mbo Limited
    [2013] eKLR

    Objective of Rule 5(2)(b) discretion is to preserve the subject matter of the appeal

  • Bob Morgan Systems Ltd & another v Jones
    [2004] eKLR

    Statement of the twin test for Rule 5(2)(b) applications

  • Stanley Kang'ethe v Tony Keter & 5 others
    [2013] eKLR

    Single bona fide arguable ground suffices; nugatory test on reversibility and adequacy of damages

  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd
    Civil Application No. Nai 345 of 2004

    One bona fide arguable ground is sufficient

  • Joseph Gitahi Gachau & Another v Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No. 124 of 2008

    An arguable appeal is one that ought to be argued fully, not one that must succeed

  • Somak Travels Ltd v Gladys Aganyo
    [2016] eKLR

    Failure to annex a draft memorandum of appeal is not fatal

  • Reliance Bank Limited v Norlake Investments Ltd
    [2002] 1 EA 227

    Court must weigh consequences of refusal on applicant against suffering to the respondent

On appeal from
High Court at Nakuru
Nakuru Misc. Civil Application No. E028 of 2021
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, "Kakoompe v Ogola t/a Ogola Okello and CO. Advocate & 4 others", Case Analysis (2022). Civil Application E328 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/903/eng@2022-04-28

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