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Court of AppealAllowedNairobi ELC 924B of 2015 (Motion for stay of execution pending appeal)· [2024] KECA 1430 (KLR)

Wautie Technical Services Ltd & another v Ngei; Ngei (Interested Party) (Civil Application E573 of 2023) [2024] KECA 1430 (KLR)

Court of Appeal
11 October 2024
1,500 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Court of Appeal halted enforcement of a Kshs.15 million land compensation judgment, confirming that unrebutted claims about a judgment debtor's inability to repay can secure a stay.

What this practically means

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Executive summary

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This was a single-judge-panel application under rule 5(2)(b) of the Court of Appeal Rules by Wautie Technical Services Ltd and Gintu Holdings Limited (with Charles Njogu Ngei, the 1st defendant, noted as having joined the notice of appeal) seeking stay of execution of a judgment of Angote, J. delivered on 21st September 2023. That judgment ordered the applicants to compensate the plaintiff, Winnie Wairigu Ngei, with her share of the suit property (Title No. 12159/29) at current market value without developments, with valuation by a valuer appointed by the President of the Institution of Surveyors of Kenya, and with costs to the applicants. The applicants argued the intended appeal was arguable - the Judge found the purchase price had been paid in full to the interested party yet still ordered payment of 25% of the property value, and compensation was based on current market value contrary to the sale agreement - and that it would be rendered nugatory because the respondent was a foreigner with no known assets in Kenya. The respondent countered that the property was sold using a forged power of attorney and that she was an auditor in the United Kingdom able to repay Kshs.15,000,000; the interested party supported the application. Applying the twin principles from Stanley Kangethe Kinyanjui v Tony Ketter, the Court found the points arguable and held that the unrebutted allegation of the respondent's foreign residence shifted the evidential burden to her under National Industrial Credit Bank v Wasike. The Motion was allowed with a stay of execution pending the intended appeal; costs of the Motion were made costs in the appeal. The underlying judgment was not disturbed at this interlocutory stage.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The Court found the draft memorandum of appeal raised arguable points, including whether the trial Judge could order compensation at current market value when the sale agreement specified the value at the time of sale.

Reasoning

The Court examined the draft Memorandum of Appeal and identified two arguable points: that the Judge found the full purchase price had been paid yet still condemned the applicants to pay 25% of the property's value, and that compensation was based on current market value contrary to the agreement for sale. Citing Mandavia, the Court held arguable points need not succeed; they need only be worthy of full consideration.

p. 3
02

Whether the appeal would be rendered nugatory absent stay

Holding

The allegation that the respondent is a foreigner with no known assets in Kenya was unrebutted, shifting the evidential burden to the respondent; the nugatory principle was satisfied.

Reasoning

The applicants asserted the respondent was a foreigner with no known assets in Kenya from whom they could not recover if the appeal succeeded. The respondent did not respond to this assertion at all. Relying on National Industrial Credit Bank Ltd v Wasike, the Court held that once such an allegation is made, the evidential burden shifts to the respondent to show capacity to repay. The respondent's assertion that she is an auditor in the United Kingdom who could pay back Kshs.15,000,000 did not displace this.

p. 3

Legal principles established

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  • To succeed on a rule 5(2)(b) application an applicant must show the appeal (or intended appeal) is arguable and that it would be rendered nugatory absent stay.
  • An arguable point on appeal is not one that will necessarily succeed, but one worthy of full consideration by the court.
  • Once an applicant alleges that a respondent is a foreigner with no known assets and would be unable to refund the decretal sum, the evidential burden shifts to the respondent to disprove the allegation.

Court orders

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  1. 1.Stay of execution of the judgment and orders of the ELC in Case No. 294B of 2015 delivered on 21st September, 2023 pending the lodging, hearing and determination of the intended appeal
  2. 2.Costs of the Motion to be in the appeal

Authorities

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Legislation

  • The Court of Appeal Rulesrule 5(2)(b)

Cases cited (3)

  • Stanley Kangethe Kinyanjui vs. Tony Ketter & Others
    [2013] eKLR
  • Damji Pragji Mandavia vs. Sara Lee Household & Body Care (K) Ltd
    Civil Application No. Nai 345 of 2004
  • National Industrial Credit Bank Ltd vs. Aquinas Francis Wasike & Another
    [2006] eKLR
On appeal from
Environment and Land Court
Nairobi ELC 924B of 2015 (referred to in orders as Case No. 294B of 2015)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (appeal lodged by notice of appeal against the whole judgment)

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, "Wautie Technical Services Ltd & another v Ngei; Ngei (Interested Party) (Civil Application E573 of 2023) [2024] KECA 1430 (KLR)", Case Analysis (2024). Nairobi ELC 924B of 2015 (Motion for stay of execution pending appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1430/eng@2024-10-11

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