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Court of AppealPartially AllowedNot stated in the judgment as provided

Jomo Kenyatta University of Agriculture & Technology v Higiro (Civil Appeal (Application) E368 of 2024) [2024] KECA 1668 (KLR)

Court of Appeal of Kenya
22 November 2024
1,982 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal paused enforcement of a High Court order registering a Rwandan judgment, because the university's appeal raised real issues and the money might be unrecoverable.

What this practically means

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Executive summary

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The applicant, a public university, sought a stay of execution of the order of the High Court at Nairobi (Mulwa, J.) delivered on 26th April 2024, pending the hearing and determination of an intended appeal. The dispute arose from a judgment of the Commercial Court at Kigali, Rwanda, delivered on 31st July 2018, which the respondent sought to have recognised and adopted by the High Court at Nairobi; the Kigali judgment was registered as a judgment of the High Court on 28th July 2023. The applicant, asserting it was never served in the recognition proceedings and had already paid the amount claimed, applied to set aside the registration but was unsuccessful. Before the Court of Appeal, the application was supported by an affidavit of Richard Kariuki, the applicant's Chief Legal Officer, and opposed by the respondent. Applying the twin principles governing rule 5(2)(b) applications - arguability and nugatory-ness - the court found that the intended grounds of appeal, including the alleged absence of a certified, sealed and signed certificate from the original court as a prerequisite for registration of a foreign judgment, and the claim of double payment, were not frivolous. On the nugatory limb, the court noted the colossal sum involved, the applicant's public funding, and the respondent's failure to adduce evidence of financial means to rebut the allegation that recovery would be difficult if the appeal succeeded. The court granted the stay of execution pending appeal and ordered that costs of the application abide the outcome of the appeal. The decision is binding on the High Court.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable (not frivolous)
  2. 2.Whether, absent a stay of execution, the intended appeal would be rendered nugatory

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended grounds of appeal were not frivolous and required ventilation before the appellate bench.

Reasoning

The applicant asserted that the High Court failed to set aside registration of the Kigali judgment despite acknowledging the respondent's failure to furnish a certified, sealed and signed copy of the certificate from the original court, a prerequisite for registration of foreign judgments, and that execution would result in double payment. The court found these grounds not frivolous, applying the rule that a single arguable point suffices and success need not be demonstrated.

p. 3
02

Whether the appeal would be rendered nugatory absent a stay

Holding

The nugatory principle was satisfied: the sum was colossal, the applicant was publicly funded, and the respondent, a foreign national, adduced no evidence of means to rebut the allegation that recovery would be difficult.

Reasoning

Relying on International Laboratory for Research of Animals vs. Kinyua, the court held that an allegation that money may be irrecoverable calls for rebuttal evidence from the respondent. The respondent merely denied the allegation casually and filed no financial statement. Balancing the competing interests of the parties, and applying the full meaning of 'nugatory' from Kang'ethe and Fleur Investment, the court was satisfied both limbs were met.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) of the Court of Appeal Rules must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory absent a stay.
  • An applicant need not show a multiplicity of arguable points; one arguable point suffices, and the applicant need not show that the arguable point would succeed.
  • Where impecuniosity or inability to refund is alleged as the basis of nugatory-ness, a bare denial is insufficient; the allegation must be rebutted by evidence.

Court orders

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  1. 1.Stay of execution of the order of the High Court at Nairobi (Mulwa, J.) delivered on 26th April 2024, pending the hearing and determination of the appeal
  2. 2.Costs of the application to abide by the outcome of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Not stated in the judgment as provided
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and rules 5(2)(b) and 49 of the Court of Appeal Rules, 2022

Relief refused

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Costs of the application were not awarded to either party forthwith

The court directed that costs of the application abide the outcome of the appeal rather than being awarded immediately.

p. 4

Costs

Costs of the application will abide by the outcome of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

To succeed in an application under rule 5(2) (b) of this Court’s Rules, an applicant has to satisfy the twin principles that are enumerated in many decisions of this Court
p. 3Twin principles for stay under rule 5(2)(b)
an applicant need not show a multiplicity of arguable points, as one arguable point would sufice. Neither is the applicant required to show that the arguable point would succeed
p. 3Threshold of arguability
The respondent in rebutting the allegation did so casually and failed to place before us some evidence negating the allegation, for example, his financial statement. Indeed, the allegation required to be rebutted by evidence.
p. 4Evidentiary burden to rebut allegation of irrecoverability
In the circumstances therefore, we are satisfied that the applicant has satisfied both principles and we grant stay of execution of the High Court order as prayed, pending hearing and determination of the appeal.
p. 4Final orders - stay granted
Costs of the application will abide by the outcome of the appeal.
p. 4Costs order

Issues in the judgment

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minor

The respondent is recorded in paragraph 5 as opposing the application by a replying affidavit dated 4th September 2023, which predates the application dated 22nd May 2024 it purports to oppose; the date is likely an error in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jomo Kenyatta University of Agriculture & Technology v Higiro (Civil Appeal (Application) E368 of 2024) [2024] KECA 1668 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1668/eng@2024-11-22

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