Ngisa & another practicing as Morara Ngisa & Co Advocates v National Social Security Fund Board of Trustees (Civil Appeal (Application) E245 of 2023) [2024] KECA 73 (KLR)
The bottom line
#The Court of Appeal refused to pause enforcement of a Kshs.6 million judgment against two lawyers because NHIF can afford to repay the money if the appeal succeeds.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The applicants raised arguable points that were not frivolous and required ventilation at the hearing of the main appeal.
The court stressed that it must not delve into the merits of the appeal, which is the preserve of the bench that will hear it. On a glance, the applicants' points concerning liability on the professional undertaking and the status of the 2nd applicant as a partner were arguable. The first limb of the twin test was therefore satisfied.
Whether the appeal would be rendered nugatory absent stay (money decree)
No, because the respondent, a state corporation, was not shown to be incapable of refunding the decretal sum if the appeal succeeded.
Applying the money-decree principle, the court held that a respondent able to repay defeats the nugatory limb. The respondent's averment, made by its principal officer and not disputed, that it is capable of paying back, meant the applicants could not overcome the general principle. Having satisfied only one limb, the applicants necessarily failed.
Legal principles established
#- To succeed on an application under rule 5(2)(b) of the Court of Appeal Rules, an applicant must demonstrate both an arguable appeal and that the appeal will be rendered nugatory if stay is not granted; failure on either limb is fatal.
- An appeal arising out of a money decree is ordinarily not rendered nugatory by payment, unless the applicant demonstrates that the respondent cannot repay the decretal sum.
Court orders
#- 1.Dismissal of the applicants' application for stay of execution and, in the alternative, injunction pending appeal
- 2.Costs of the application to the respondent
- On appeal from
- High Court of Kenya
- Commercial Case No. E146 of 2022
- Jurisdiction invoked
- Section 3 of the Appellate Jurisdiction Act and Rules 2, 5(2)(b), 42 and 47 of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngisa & another practicing as Morara Ngisa & Co Advocates v National Social Security Fund Board of Trustees (Civil Appeal (Application) E245 of 2023) [2024] KECA 73 (KLR)", Case Analysis (2024). Notice of Motion dated 26th April 2023 (arising from High Court Commercial Case No. E146 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/73/eng@2024-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.