Kenya Revenue Authority v Embrio Enterprises Limited (Civil Application E292 of 2023) [2024] KECA 18 (KLR)
The bottom line
#Kenya's Court of Appeal stopped execution of a Kshs. 12.87 million judgment because the judgment creditor couldn't prove it could refund the money if the appeal succeeds.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal is arguable, not frivolous, given the argument that the judge disregarded evidence that the consignment was lost outside the applicant's custody.
Applying the Stanley Kinyanjui v Tony Ketter standard, the court found a single arguable point sufficient. Counsel argued the judge disregarded evidence that the consignment or part of it was lost while outside the applicant's custody, and the court was satisfied the intended appeal was not frivolous.
Whether the appeal would be rendered nugatory if stay is not granted
The nugatory principle was satisfied because the respondent produced no material showing ability to refund the decretal amount beyond asserting it is a going concern.
Relying on Attorney General v James Hoseah Gitau Mwara, the court held that where inability to refund is alleged, the burden shifts to the respondent to prove ability to refund by listing assets and bank accounts. The respondent offered only the bare statement that it is a going concern, with no supporting material, and its director is based in the United States with no evidence of presence in Kenya.
Legal principles established
#- Where an applicant alleges the respondent's inability to refund the decretal sum if the appeal succeeds, the burden shifts to the respondent to prove ability to refund by showing assets or bank accounts.
Court orders
#- 1.An order of stay of execution of the judgment of the High Court delivered on May 24, 2023 pending the hearing and determination of the applicant's intended appeal, in terms of prayer 3 of the application dated June 27, 2023
- 2.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- High Court at Nairobi
- 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, "Kenya Revenue Authority v Embrio Enterprises Limited (Civil Application E292 of 2023) [2024] KECA 18 (KLR)", Case Analysis (2024). Application dated 27th June 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/18/eng@2024-01-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.