Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal (Application) E093 of 2022· [2023] KECA 59 (KLR)

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)

Court of Appeal
3 February 2023
933 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

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

#
The applicants, Evans Ihura and Evans Ihura Njoroge, moved the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of the judgment and decree of the High Court (Sergon, J) in Milimani High Court Civil Appeal No 519 of 2018, delivered on July 10, 2020, pending their appeal, which they principally challenged on quantum. The respondent, personal representatives of a deceased estate arising from a 2013 road accident, opposed the motion, pointing out that prior stay applications had been denied or dismissed as res judicata, and that the applicants had failed to explain the delay in filing. Only counsel for the respondent attended the hearing, the applicants being absent though served. The court applied the settled twin principles under rule 5(2)(b): arguability and the nugatory aspect, citing Housing Finance of Kenya Ltd and Stanley Kang'ethe Kinyanjui. It accepted that a single arguable issue suffices and found the intended appeal arguable on quantum. However, because the decree was monetary and could be refunded if the appeal succeeded, and the applicants neither alleged nor demonstrated that the respondents could not repay the decretal sum, the nugatory limb failed. The applicants' assertion that their insurer was willing to furnish a bank guarantee was unsupported by any evidence. Both limbs must be satisfied; failing one, the application necessarily fails. The court dismissed the application with costs, leaving the respondent free to execute the decree.

Key legal issues

#
01

The twin principles under Rule 5(2)(b) for stay of execution pending appeal

Holding

The applicants satisfied the arguability limb on quantum but failed the nugatory limb, so the application failed.

Reasoning

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.

p. 2
02

Whether the offer of a bank guarantee by the applicants' insurer justified a stay

Holding

A bare assertion of willingness by the insurer, without evidence, cannot justify denying the respondent the fruits of judgment.

Reasoning

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.

p. 2

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. 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.