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Court of AppealDismissedCivil Appeal (Application) E341 of 2021· [2022] KECA 1139 (KLR)

Samson Ngugi Ichungwa t/a Grenair v National Industrial Credit Bank & 2 others

Court of Appeal
21 October 2022
ASAsike-MakhandiaJMJ. MohammedHOH. A. Omondi
1,718 words in judgment
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The bottom line

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The Court of Appeal refused to pause a long-running bank case, confirming that recycled arguments won't earn a stay of proceedings in Kenya.

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 (Asike-Makhandia, J. Mohammed and H. A. Omondi, JJA) on a notice of motion dated 23rd June 2021 by Samson Ngugi Ichungwa t/a Grenair, brought under Rule 5(2)(b) of the Court of Appeal Rules, seeking a stay of proceedings in HCCC No. 86 of 2010 pending the hearing of an intended appeal against a ruling of Ngenye, J. dated 29th April 2021 dismissing his application to set aside an interlocutory judgment entered on a counterclaim in 2014. The respondents opposed, contending the application was res judicata, that the ruling was a negative order incapable of being stayed, and that the applicant was abusing process through endless litigation; the 2nd respondent detailed losses from the applicant's continued occupation of the suit properties. The Court restated the settled twin principles under Rule 5(2)(b) - arguability and nugatory-ness - both of which must be satisfied. On arguability, it doubted that the intended appeal was arguable, since the grounds had been raised and adequately addressed in several prior proceedings, including Civil Appeal No. 38 of 2016 in which this Court upheld the High Court's decision. Formal proof had also been conducted, with judgment pending in November 2022. Having failed the arguability limb, the applicant could not succeed, and the Court declined to consider the nugatory aspect. The motion was dismissed with costs to the respondents.

Key legal issues

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01

Whether the intended appeal was arguable under Rule 5(2)(b)

Holding

The Court doubted arguability because the grounds of appeal had already been raised and addressed in several prior proceedings, including before the Court of Appeal itself.

Reasoning

The Court reviewed the litigation history: the interlocutory judgment issue had been litigated in the High Court and on appeal in Civil Appeal No. 38 of 2016, where this Court upheld the High Court's refusal to set aside the interlocutory judgment. Raising the same grounds again rendered the intended appeal not bona fide arguable. Formal proof had also already been conducted.

p. 3
02

Whether the nugatory limb needed consideration

Holding

Having failed on arguability, the applicant could not succeed, and the Court declined to consider the nugatory aspect.

Reasoning

The Court reiterated that both limbs of the Rule 5(2)(b) test must be satisfied. Since arguability failed, the application's fate was sealed and consideration of nugatory-ness was unnecessary. The application was dismissed with costs to the respondents.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both arguability of the appeal and that it will be rendered nugatory; failure on either limb is fatal.
  • An arguable appeal need not necessarily succeed; it is one that is not frivolous and ought to be argued fully.

Court orders

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  1. 1.The notice of motion dated 30th July, 2021 is dismissed with costs to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure RulesOrder 10 Rules 4, 5, 6, 7 and 8

Cases cited (3)

  • Trust Bank Limited and Another vs. Investech Bank Limited and 3 Others
    [2000] eKLR

    Delineating the twin principles for granting stay under Rule 5(2)(b): arguability and nugatory-ness.

  • Stanley Kang'ethe Kinyanjui vs. Tony Ketter & 5 Others
    [2013] eKLR

    Definition of an arguable appeal and the bar on making definitive findings at the interlocutory stage.

  • Samson Ngugi Ichungwa t/a Grenair vs. National Industrial Credit Bank & 2 Others
    Civil Appeal No. 38 of 2016

    Prior appeal in which this Court upheld the High Court's refusal to set aside the interlocutory judgment.

On appeal from
High Court of Kenya
HCCC No. 86 of 2010
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, "Samson Ngugi Ichungwa t/a Grenair v National Industrial Credit Bank & 2 others", Case Analysis (2022). Civil Appeal (Application) E341 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1139/eng@2022-10-21

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