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Court of AppealDismissedApplication dated 23rd June 2023 (Civil Appeal, Eldoret)

Watunu & another v Wamutoro & another (Suing as the Legal Representatives of the Estate of Khakoni Damary Lumbasi) (Civil Application E030 of 2023) [2024] KECA 58 (KLR)

Court of Appeal of Kenya
2 February 2024
1,651 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to pause a Kshs 14 million judgment because the applicants never showed their intended appeal had any real merit.

What this practically means

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Executive summary

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The applicants, Margaret Watunu and Joseph Edward Watunu, moved the Court of Appeal at Eldoret by a motion dated 23rd June 2023 under Rules 1(2), 5(2)(b) and 42 of the Court of Appeal Rules, seeking a temporary stay of execution of the decree and judgment in Eldoret HCCA No. 38B of 2020, in which the High Court on 26th May 2023 upheld the lower court's award of Kshs 14,154,642 to the respondents. The applicants deposed that the insurer had partially settled Kshs 3,000,000, leaving them exposed to over Kshs 12,000,000, and that they apprehended execution by warrants of attachment. The respondents opposed, contending the awards were within the law and the application was designed to deny them the fruits of judgment. Both parties erroneously framed their submissions around Order 42 Rule 6(2) of the Civil Procedure Rules 2010. The Court applied the settled twin principles under Rule 5(2)(b) as summarised in Stanley Kangethe Kinyanjui v Tony Ketter & Others, restating that an applicant must satisfy the Court on both an arguable appeal and nugatory-ness. It corrected the parties, holding that Order 42 applies only to High Court appeals, not to the Court of Appeal. Finding no averment of arguability, no draft memorandum of appeal annexed, and no single arguable point identified even when probed, the Court held it superfluous to consider the nugatory limb. The motion was dismissed in its entirety with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants satisfied the twin principles under Rule 5(2)(b) of the Court of Appeal Rules for the grant of a stay of execution pending appeal, namely an arguable appeal and whether the appeal would be rendered nugatory absent a stay

Key legal issues

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01

Whether the applicants demonstrated an arguable appeal under Rule 5(2)(b)

Holding

The Court found no averment showing why the intended appeal was arguable; no draft memorandum of appeal was annexed and counsel could not point out a single arguable point when probed.

Reasoning

The Court applied the principles in Stanley Kangethe Kinyanjui v Tony Ketter & Others, requiring an applicant to satisfy both limbs. It found no single averment as to why the intended appeal was arguable, no draft memorandum of appeal annexed, and no arguable point identified even after probing by the Court during plenary hearing. A bare assertion that the decretal amount was enormous could not substitute for a laid basis.

p. 4
02

Whether Order 42 Rule 6(2) of the Civil Procedure Rules applies to stay applications in the Court of Appeal

Holding

It does not; Order 42 applies only to appeals before the High Court, and both parties had broadly misinterpreted the law in invoking it.

Reasoning

Both parties' submissions invoked Order 42 Rule 6(2) of the Civil Procedure Rules 2010. The Court held this was a misinterpretation, since those provisions govern appeals before the High Court only. Stay applications in the Court of Appeal are governed by Rule 5(2)(b) of the Court of Appeal Rules and the twin principles of arguability and nugatory-ness.

p. 4
03

Whether the intended appeal would be rendered nugatory absent a stay

Holding

Having failed on the first limb (arguability), it was superfluous to consider the second limb.

Reasoning

The Court reiterated that an applicant must satisfy the Court on both twin principles. Since the applicants failed entirely to demonstrate an arguable appeal, the Court declined to make findings on whether the appeal would be rendered nugatory, treating that inquiry as superfluous. It also noted the record did not show whether execution had already taken place.

Legal principles established

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  • An applicant under Rule 5(2)(b) of the Court of Appeal Rules must satisfy the Court on both twin principles: that the appeal is arguable and that it would be rendered nugatory absent stay.
  • Order 42 of the Civil Procedure Rules 2010 does not apply to appeals in the Court of Appeal; it applies only to appeals before the High Court.
  • A general assertion that the decretal amount is enormous is not, without more, an arguable ground of appeal.

Court orders

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  1. 1.Dismissal in its entirety of the applicants' motion dated 23rd June 2023 seeking a temporary stay of execution of the decree and judgment in Eldoret HCCA No. 38B of 2020
  2. 2.Costs of the application to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court
Eldoret HCCA No. 38B of 2020
Jurisdiction invoked
Rules 1(2), 5(2)(b) and 42 of the Court of Appeal Rules

Relief refused

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Temporary stay of execution of the decree and judgment in Eldoret HCCA No. 38B of 2020 pending the hearing and determination of the intended appeal

The applicants failed to demonstrate an arguable appeal and did not annex a draft memorandum of appeal; having failed on the first limb, the nugatory limb need not be considered

p. 4

Costs

The motion was dismissed with costs to the respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

An applicant must satisfy the Court on both the twin principles.
p. 3Twin principles under Rule 5(2)(b)
the provisions of Order 42 of the Civil Procedure Rules 2010 are not applicable to appeals before this Court and are only applicable to appeals before the High Court
p. 4Inapplicability of Order 42 CPR to Court of Appeal stay applications
A mere general assertion that the decretal amount is an enormous amount cannot in itself be said to be an arguable ground of appeal without laying a basis for the same.
p. 4Arguability requires a laid basis
we find no merits in the applicants’ motion dated 23rd June 2023, which motion we hereby dismiss in its entirety with costs to the respondents
p. 4Final orders - dismissal with costs

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Watunu & another v Wamutoro & another (Suing as the Legal Representatives of the Estate of Khakoni Damary Lumbasi) (Civil Application E030 of 2023) [2024] KECA 58 (KLR)", Case Analysis (2024). Application dated 23rd June 2023 (Civil Appeal, Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/58/eng@2024-02-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.