Charles Kerich, County Executive Committee (member) For Finance and Economic Planning & 1 other v Park Towers Limited
The bottom line
#Kenya's Court of Appeal refused to pause a Kshs 43.7 million judgment because the company seeking a delay had never actually appealed the decision itself.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal met the arguability limb of the rule 5(2)(b) test
The applicants failed the arguability limb: they did not appeal against the underlying judgment and were essentially seeking more time to settle a monetary decree, part of which they had already paid
The draft memorandum raised four grounds concerning representation, ability to pay and the 1st applicant's role in payment. However, the court noted the applicants had not appealed the judgment under execution and had paid Kshs 10 million in part payment. The court held that on these circumstances the grounds were doubtful as to arguability, and a court should candidly flag frivolous grounds without determining their merits.
Whether the second (nugatory) limb needed consideration
Having failed the first limb, the second limb did not arise; in any event the decree was monetary and no argument was made that the respondent could not refund
The twin limbs of rule 5(2)(b) are conjunctive, so failure on arguability is fatal without considering nugatory effect. The court further observed that the decretal sum was monetary and the applicants did not contend that the respondent would be unable to refund it if the intended appeal ultimately succeeded, undermining any claim of nugatory effect.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate conjunctively that the intended appeal is arguable and not frivolous, and that it would be rendered nugatory absent stay
- A single bona fide arguable ground suffices to establish that an appeal is not frivolous
- Where the grounds of appeal appear frivolous, the Court should say so without going into the merits
Court orders
#- 1.The application for temporary stay of proceedings pending intended appeal is dismissed
- 2.Costs of the application to the respondent
- On appeal from
- High Court of Kenya
- Nairobi HC JR No. 282 of 2014; Republic v. Nairobi City County Government ex-parte Part Towers Limited
- Jurisdiction invoked
- Sections 3 and 3A of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Kerich, County Executive Committee (member) For Finance and Economic Planning & 1 other v Park Towers Limited", Case Analysis (2024). Rule 5(2)(b) Application in intended appeal from Nairobi HC JR No. 282 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1398/eng@2024-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.