Ihura & another v Hagos Birikirti Tewoldenrehen De La Torre & Ramirez Nelly Victoria (Suing as the Personal Representatives of the Estate of Mendoza Lop Az Aquilina - Deceased) (Civil Appeal (Application) E093 of 2022) (3 February 2023) (Reasons) [2023] KECA 59 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a money judgment, ruling that refundable money judgments are not harmed by waiting out an appeal.
What this practically means
#Executive summary
#Key legal issues
#The twin principles under Rule 5(2)(b) for stay of execution pending appeal
The applicants satisfied the arguability limb on quantum but failed the nugatory limb, so the application failed.
The court restated that a Rule 5(2)(b) applicant must demonstrate an arguable appeal and that the appeal would be rendered nugatory absent a stay. A monetary decree is not nugatory where the decretal sum can be refunded and no inability to repay is shown. Both limbs must be satisfied; failure of one disposes of the application.
Whether the offer of a bank guarantee by the applicants' insurer justified a stay
A bare assertion of willingness by the insurer, without evidence, cannot justify denying the respondent the fruits of judgment.
The applicants stated that their insurer was willing and able to furnish a bank guarantee as security, but adduced nothing to demonstrate this. In the absence of tangible proof of security, there was no justification for depriving the respondent of the fruits of its judgment.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory principles; success on one limb alone is insufficient
- One single arguable issue suffices and it need not be one that must succeed
- A monetary decree will generally not be stayed where the respondent's ability to refund is not demonstrated
Court orders
#- 1.Application for stay of execution dismissed with costs
- On appeal from
- High Court of Kenya at Nairobi
- Milimani High Court Civil Appeal No 519 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ihura & another v Hagos Birikirti Tewoldenrehen De La Torre & Ramirez Nelly Victoria (Suing as the Personal Representatives of the Estate of Mendoza Lop Az Aquilina - Deceased) (Civil Appeal (Application) E093 of 2022) (3 February 2023) (Reasons) [2023] KECA 59 (KLR)", Case Analysis (2023). Civil Appeal (Application) E093 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/59/eng@2023-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.