Vaghjiyani Enterprises Ltd v Osundwa & Company Advocate
The bottom line
#Kenya's Court of Appeal stopped execution of a Kshs 4.5 million advocate-fee award because a single arguable appeal point is enough to win a stay.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal raises arguable issues
The court found triable issues in whether the bill of costs was pegged on an erroneous figure and whether the applicant met the Order 42 threshold for stay of execution.
The court, taking care not to prejudice the hearing of the intended appeal, identified two issues it considered triable: whether the judge erred in failing to find the bill of costs was pegged on an erroneous figure, and whether the applicant had met the Order 42 Civil Procedure Rules threshold for stay of execution. Relying on the settled principle that one bona fide arguable point suffices and need not ultimately succeed, the threshold was satisfied.
Whether the appeal would be rendered nugatory if stay is not granted
Because the final amount payable remains unsettled pending the appeal on the reference, execution now would render the appeal futile.
The court held that nugatoriness must be assessed in the circumstances of each case, and the respondent's ability to refund is not the only factor. Here leave to appeal against the dismissal of the reference was granted, an appeal is pending, and the amount ultimately owed will only be ascertained on appeal. Allowing execution before that determination would render the appeal futile, so the nugatory limb was satisfied.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate an arguable appeal and that the appeal will be rendered nugatory if stay is not granted.
- A single arguable issue suffices for a Rule 5(2)(b) application and it need not succeed on appeal.
- The nugatory inquiry is fact-specific and the respondent's financial capability to refund the decretal sum is not the sole determining factor.
Court orders
#- 1.Stay of the High Court ruling dismissing the applicant's application for conservatory orders pending appeal, granted in the applicant's favour
- 2.Costs to abide by the outcome of the appeal
- On appeal from
- High Court
- 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, "Vaghjiyani Enterprises Ltd v Osundwa & Company Advocate", Case Analysis (2024). Notice of motion dated 2nd June 2023 (Civil Application). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/81/eng@2024-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.