Astonfield Solesa Solar Kenya Limited v Beyond The Grid Solar Fund, Llc & 1 other
The bottom line
#Kenya's Court of Appeal refused to pause a multi-million dollar judgment because the winning side is a financial institution that can repay the money if the appeal succeeds.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable under rule 5(2)(b)
The intended appeal is arguable because it raises the question whether the defence raised any triable issue, but the court made no definitive findings
The court applied the settled test that only a single bona fide arguable ground is required. The memorandum of appeal raised ten grounds, including that the High Court judge struck out the defence without finding triable issues and made assumptions that could only be resolved at trial with evidence. Without embarrassing the bench seized of the main appeal, the court was satisfied the appeal was arguable.
Whether the appeal would be rendered nugatory if stay is not granted
The appeal would not be rendered nugatory because the respondents are sound financial institutions capable of refunding the decretal amount if the appeal succeeds
The applicant did not demonstrate that the respondents, being financial institutions, would be unable to pay damages or that damages would be an insufficient remedy. Counsel for the respondents submitted, without contradiction, that they were sound financial institutions with no difficulty refunding the decretal sum. The court followed Integrated Wood Complex Ltd on the nugatory principle and found the limb unsatisfied.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both limbs - an arguable appeal and that the appeal will be rendered nugatory absent stay; failure on either limb is fatal
- An arguable appeal need not necessarily succeed; it is one that is not frivolous and deserves full argument, and the court must not make definitive findings at the interlocutory stage
- Where the respondent is an established financial institution able to repay the decretal amount, the appeal will not be rendered nugatory if stay is refused
Court orders
#- 1.Dismissal of the notice of motion dated January 24, 2022 seeking stay of execution pending appeal
- 2.Costs of the application awarded to the respondents
- On appeal from
- High Court of Kenya
- H.C.C.C. No. E205 of 2021
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Astonfield Solesa Solar Kenya Limited v Beyond The Grid Solar Fund, Llc & 1 other", Case Analysis (2023). Civil Application No. E205 of 2021 (Notice of Motion dated January 24, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/139/eng@2023-02-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.