Makhanu v Cheruiyot & another (Civil Application E359 of 2022) [2023] KECA 328 (KLR)
The bottom line
#The Court of Appeal refused to halt a High Court case, ruling the intended appeal had no arguable grounds and would not be harmed if proceedings continued.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether the intended appeal will be rendered nugatory absent stay of proceedings
Key legal issues
#Arguability of the intended appeal against the amendment of pleadings
The applicant failed the arguability limb
The learned judge considered whether the amendment was necessary for the determination of the real issues and found it introduced no new cause of action. On the red-ink requirement, she noted that on the e-platform the colour that appears is black. Taking the amendment principles into account, the Court saw no arguable ground, while saying no more to avoid embarrassing the bench seized of the main appeal.
Whether the intended appeal would be rendered nugatory absent stay
It would not
The Court reasoned that the intended appeal concerns an interlocutory ruling on amendment, and if the trial court ultimately finds against the applicant, he retains a right of appeal against that outcome. The proceedings continuing therefore do not render the appeal nugatory, and the nugatory limb failed as well.
Legal principles established
#- An applicant under rule 5(2)(b) must establish both arguability of the intended appeal and that the appeal will be rendered nugatory absent stay
- An interlocutory appeal such as this is not rendered nugatory where the applicant retains a right of appeal on the outcome of the trial court's decision
Court orders
#- 1.Dismissal of the notice of motion dated October 5, 2022
- 2.Costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Nairobi HCACE Pet No 3 of 2022
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of proceedings in Nairobi HCACE Pet No 3 of 2022
Applicant failed to establish either arguability of the intended appeal or that it would be rendered nugatory absent stay
Costs
The motion was dismissed with costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
in order for us to grant an order of stay, an applicant has to establish arguability of the intended appeal and, secondly, that the appeal will be rendered nugatory absent stay.
Having not satisfied the two conditions precedent of arguability as well as the nugatory aspect, we find no merit in the motion. It is hereby dismissed with costs.
Issues in the judgment
#The document describes itself as an 'applicant' motion before the Court of Appeal (rule 5(2)(b) interlocutory application), not a full appellate judgment; the parties are styled applicant/respondents rather than appellant/respondent
The judgment contains an apparent clerical error in the date of the notice of appeal: the affidavit describes events up to September/October 2022, yet the notice of appeal is dated November 23, 2022 while the motion is dated October 5, 2022
The supplementary affidavit is described as containing submissions rather than depositions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makhanu v Cheruiyot & another (Civil Application E359 of 2022) [2023] KECA 328 (KLR)", Case Analysis (2023). Rule 5(2)(b) application in intended appeal (as stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/328/eng@2023-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.