Jomo Kenyatta University of Agriculture & Technology v Higiro (Civil Appeal (Application) E368 of 2024) [2024] KECA 1668 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable (not frivolous)
- 2.Whether, absent a stay of execution, the intended appeal would be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The intended grounds of appeal were not frivolous and required ventilation before the appellate bench.
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.
Whether the appeal would be rendered nugatory absent a stay
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.
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.
Legal principles established
#- 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
#- 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.Costs of the application to abide by the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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.
Costs
Costs of the application will abide by the outcome of the appeal.
Quotable passages
#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
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
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.
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.
Costs of the application will abide by the outcome of the appeal.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- University of Nairobi v Mayaka (Employment and Labour Relations Appeal E167 of 2021) [2025] KEELRC 2013 (KLR)[2025] KEELRC 2013 (KLR)30 Jun 2025
Cite this brief
#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.