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Court of AppealDismissed· [2024] KECA 1386 (KLR)

Njigoru v Liquidator, Kenya National Assurance Limited & 2 others (Civil Application E039 of 2024) [2024] KECA 1386 (KLR)

Court of Appeal of Kenya
11 October 2024
WKW. KaranjaLKL. KimaruAMA. O. Muchelule
1,236 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stay an already-executed court order, warning that you cannot chase the same case in two courts at once.

What this practically means

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Executive summary

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Fredrick Mukua Njigoru moved the Court of Appeal at Nyeri under Rule 5(2)(b) of the Court of Appeal Rules, 2022 seeking a stay or set-aside order suspending a verbal consent order recorded on 11th May 2022 and restraining the respondent from implementing it, pending an intended appeal against a High Court ruling delivered on 11th April 2024. He contended that the consent judgment was adopted without his participation, that he would suffer substantial loss, and that his appeal would be rendered nugatory. The 3rd respondent, Kudgeta Wamugo Njigoru, opposed, deponing that the consent order had been adopted two years earlier, that a decree had been extracted and executed, and that the applicant was simultaneously pursuing similar relief in Embu ELC Case No. 9 of 2023 (OS), having earlier withdrawn his suit against the 1st and 2nd respondents. The Court first held that the 1st and 2nd respondents were not parties to the application. Applying the twin principles under Rule 5(2)(b), the Court found the intended appeal arguable - the claim that the consent was adopted without the applicant's participation was not frivolous, and one arguable ground suffices. However, the applicant failed the nugatory limb: the order sought to be stayed had already been executed, leaving nothing to stay, and he could not pursue the same remedy in multiple forums, which would amount to an abuse of due process. The Court accordingly dismissed the application with costs. The 1st and 2nd respondents neither filed papers nor appeared at the plenary hearing, and the ruling was made on the parties' written submissions.

Key legal issues

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01

Whether the intended appeal was arguable under Rule 5(2)(b)

Holding

The intended appeal was arguable since the claim that the consent order was adopted without the applicant's participation was not frivolous; one arguable ground suffices

Reasoning

The applicant argued that the consent adopted as the court's order was made without his participation. The Court found this raised a non-frivolous ground. Under the first limb of the twin principles, only a single arguable ground need be shown; it need not necessarily succeed, only not be frivolous.

p. 3
02

Whether the intended appeal would be rendered nugatory absent stay

Holding

No. The order sought to be stayed was two years old, the decree had been extracted and executed, and the applicant was pursuing a similar remedy in the Environment and Land Court

Reasoning

The order of 11th May 2022 had already been executed - a decree was extracted - so there was nothing to stay. Additionally, the applicant had filed Embu ELC Case No. 9 of 2023 (OS) claiming similar orders; litigating in multiple forums would abuse court process. Having failed the second limb, the application had to fail.

p. 3
03

Whether the 1st and 2nd respondents remained parties to the application

Holding

They were not parties, the suit against them having been withdrawn by the applicant himself

Reasoning

Although the applicant included the 1st and 2nd respondents in the application, the notice of withdrawal he filed before the High Court showed the suit against them was withdrawn; consequently they were not parties to the dispute or the application.

p. 2

Legal principles established

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  • Under Rule 5(2)(b), an applicant for stay must satisfy the twin principles of arguability of the intended appeal and that the appeal would be rendered nugatory absent stay
  • An applicant need only establish one arguable ground, which need not necessarily succeed but must not be frivolous
  • Where the order sought to be stayed has already been executed, there is nothing to stay and the nugatory principle fails; a party may not pursue the same remedy in multiple forums as that is an abuse of due process

Court orders

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  1. 1.The application is dismissed with costs

Authorities

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Legislation

  • Court of Appeal Rules, 2022Rule 5(2)(b)

Cases cited (2)

  • Nairobi City Council v Tom Ojienda & Associates
    [2022] KECA 1326 [KLR]
  • David Morton Silverstein v Atsango Chesoni
    [2002] eKLR
On appeal from
High Court
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

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, "Njigoru v Liquidator, Kenya National Assurance Limited & 2 others (Civil Application E039 of 2024) [2024] KECA 1386 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1386/eng@2024-10-11

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