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Court of AppealDismissedCivil Appeal (Application) E186 of 2023· [2024] KECA 1921 (KLR)

Dooba Enterprises Limited v Mpeke Hauliers Limited

Court of Appeal
11 October 2024
3,741 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a Kshs 145 million judgment, ruling that winning parties may execute decrees unless the applicant proves money cannot be refunded.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Murgor, Laibuta and Odunga, JJA) on a Notice of Motion dated 22nd March 2024 by Dooba Enterprises Limited seeking stay of execution of a monetary judgment of US$434,968 entered against it by the High Court (D. Magare, J.) on 20th September 2023 in HCCC No. 51 of 2015, together with a ruling of 7th February 2024 directing attachment and possible auction of goods in transit to Uganda, pending appeal E186 of 2023. The application was premised on Rule 5(2)(b) of the Court of Appeal Rules, requiring the twin demonstrations that the appeal is arguable and that it would be rendered nugatory absent stay. The respondent conceded arguability, so the court confined itself to the nugatory limb. The court held that execution is a lawful process whose commencement does not of itself render an appeal nugatory, and that restitution remains available after a successful appeal unless the substratum of the appeal would be eroded or the respondent could not refund the decretal sum. The applicant's allegations that the respondent would be unable to refund over Kshs 145,000,000 were characterised as bare and unsupported. Although the contention that the applicant was a foreign company with no local assets was unrebutted, the court was not persuaded the appeal would be rendered nugatory. The motion was dismissed with costs to the respondent.

Key legal issues

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01

Whether execution proceedings commenced against the applicant render the appeal nugatory

Holding

No - execution is a lawful process and does not ipso facto render an appeal nugatory; restitution is available after a successful appeal unless the substratum is eroded or the respondent cannot refund

Reasoning

The court held that a successful litigant is entitled to execute its decree notwithstanding an appeal. The mere fact that execution has been levied or is likely does not satisfy the nugatory limb. Only where restitution will be impossible - because the substratum of the appeal is eroded or the respondent cannot refund - does the court's intervention become justified.

p. 5
02

Whether the applicant demonstrated that the respondent would be unable to refund the decretal sum

Holding

No - the contention that the respondent is a foreign company with no assets was unrebutted but unsupported by material justifying denial of the fruits of judgment

Reasoning

The applicant alleged it would be impractical to recover over Kshs 145,000,000 from the respondent as it would have been paid to a third party, but laid no basis for that submission. The court held the applicant must place material before the court justifying temporary denial of the respondent's enjoyment of its judgment; bare allegations do not meet the threshold.

p. 6
03

Whether the applicant's appeal is arguable

Holding

Yes - the respondent conceded arguability, and rightly so

Reasoning

The respondent conceded that the appeal was arguable, and the court agreed. The court therefore confined itself to the second limb of the Rule 5(2)(b) test, which the applicant failed to satisfy, leading to dismissal of the motion.

p. 5

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both twin principles: arguability and that the appeal would be rendered nugatory absent stay
  • Commencement of execution does not of itself render an appeal nugatory; restitution remains available after a successful appeal
  • A single bona fide arguable ground suffices for the first limb
  • Bare allegations that a respondent cannot refund the decretal sum do not meet the threshold for granting stay

Court orders

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  1. 1.The Notice of Motion dated 22nd March 2024 seeking stay of execution pending appeal is dismissed with costs

Authorities

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Legislation

  • Appellate Jurisdiction Actsections 3A and 3B
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (13)

  • Appollo Insurance Limited v Arapon Wood & Equipment Supplies Ltd
    CA No. 142 of 2003

    Principles to be satisfied in an application for stay of execution

  • Westmont Holdings SDN BHD v Central Bank of Kenya & Another
    SCOK Pet No. 16 [E023]

    Stay is discretionary and meant to balance the overarching objectives in the administration of justice

  • Peter Gathecha Gachiri v Attorney General and 4 Others
    Civil Application Nai 24 of 2014 (unreported)

    Rationale for the twin principles under Rule 5(2)(b)

  • Butt v Rent Restriction Tribunal
    [1982] KLR 417

    Balance between fruits of judgment and right of appeal

  • Kenya Shell Ltd v. Kibiru & Another
    [1986] KLR 410

    Balance between fruits of judgment and right of appeal

  • Stanley Kang'ethe v Tony Keter & 5 others
    [2013] eKLR

    A single bona fide arguable ground suffices

  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd
    Civil Application No. Nai 345 of 2004

    Sufficiency of a single arguable ground

  • Joseph Gitahi Gachau & Another v Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No. 124 of 2008

    An arguable appeal need not necessarily succeed but ought to be argued fully

  • Stanley Kangethe Kinyanjui v Tony Ketter and 5 others

    Meaning of nugatory - reversibility or compensability

  • Reliance Bank Limited v Norlake Investments Ltd
    [2002] 1 E.A. 227

    Nugatory must be given its full meaning; includes trifling

  • Permanent Secretary Ministry of Roads & another v Fleur Investments Limited
    [2014] eKLR

    Definition of a trifling appeal

  • Kenafric Matches Ltd v Match Masters Limited & Another
    Civil Application No. E902 of 2021 (UR)

    Court must consider conflicting claims of both parties; each case on its own merits

  • African Safari Club Limited v Safe Rentals Limited
    [2010] eKLR

    Overriding objective - balancing hardships of both parties on the scale

On appeal from
High Court of Kenya at Mombasa
HCCC No. 51 of 2015
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (Appellate Jurisdiction Act)

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, "Dooba Enterprises Limited v Mpeke Hauliers Limited", Case Analysis (2024). Civil Appeal (Application) E186 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1921/eng@2024-10-11

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