Omole v Odhiambo (Civil Appeal (Application) E304 of 2021)
The bottom line
#Kenya's Court of Appeal refused to pause a Kshs 6 million defamation judgment because the appellant couldn't point to a single arguable ground of appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The court perused the memorandum of appeal and found no arguable issue; the applicant pointed to no single arguable ground beyond bare assertion
The applicant merely asserted that the memorandum raised substantive issues and that the appeal was arguable and not frivolous, without identifying any specific arguable ground or responding to the impugned paragraphs. The court, having itself perused the memorandum, was unable to pick out any arguable issue, so the first limb of the rule 5(2)(b) test failed.
Whether the appeal would be rendered nugatory if stay is not granted
Although damages could reasonably compensate the respondent and the applicant offered security, the failure on the arguability limb was fatal to the application
The court accepted that this was a case where damages may reasonably compensate the respondent, who would be cushioned by the offer to deposit the decretal amount in court or a joint interest-earning account. However, since the applicant had failed one of the twin principles, the application had to fail regardless.
Legal principles established
#- An applicant for stay of execution under rule 5(2)(b) must satisfy the twin requirements that the intended appeal is arguable and that it will be rendered nugatory if stay is not granted
- An arguable appeal need not necessarily succeed; it is one that is not frivolous, and a single bona fide arguable ground suffices
- The nugatory test turns on whether what is sought to be stayed is reversible, or whether damages will reasonably compensate the aggrieved party
Court orders
#- 1.The application for stay of execution pending appeal is dismissed
- 2.The costs shall abide the outcome of the appeal
- On appeal from
- High Court at Siaya
- HC. CA. NO. E1 OF 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules and articles 22 and 23 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omole v Odhiambo (Civil Appeal (Application) E304 of 2021)", Case Analysis (2022). Civil Appeal (Application) E304 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1172/eng@2022-10-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.