Stanley Kangethe Kinyanjui V Tony Ketter & 5 Others  EKLR
|Civil Application 31 of 2012||22 Feb 2013|
Wanjiru Karanja, William Ouko, Patrick Omwenga Kiage
Court of Appeal at Nairobi
Stanley Kangethe Kinyanjui v Tony Ketter, Salim Suleiman, Mawji Patel, Innocent Maisiba Toyo, Deputy Registrar High Court of Kenya at Eldoret, Paul Gicheru Of Gicheru & Co. Advs & Commissioner of Land
Stanley Kangethe Kinyanjui V Tony Ketter & 5 others  eKLR
SCOPE AND PRINCIPLES APPLICABLE UNDER RULE 5 (2) OF THE COURT OF APPEAL RULES
Reported by Phoebe Ayaya and Derrick Nzioka
- Whether the scope of Rule 5 (2) of the Court of Appeal Rules was exercisable in the present suit.
- Whether on application of the principles under Rule 5 (2) of the Court of Appeal Rules, the Court had the jurisdiction to exercise its discretion
Civil Procedure and Practice - jurisdiction of the Court of Appeal – discretion of the court in exercise of its jurisdiction under Rule 5 (2) of the Court of Appeal rules – scope of application of the rule – principles on which the Court acts in exercising its jurisdiction under the rule - Rule 5 (2) of the Court of Appeal rules. Read More...
- From precedent on Rule 5(2)(b) of the Court of Appeal rules, the common vein running through the cases and the jurisprudence underlying the decisions could be summarized as follows:
- In dealing with Rule 5(2) (b) the court exercised original and discretionary jurisdiction and that exercise did not constitute an appeal from the trial judge's discretion to the court.
- The discretion of this court under the rule to grant a stay or injunction was wide and unfettered provided it was just to do so.
- The court became seized of the matter only after the notice of appeal had been filed under Rule 75.
- In considering whether an appeal would be rendered nugatory the court had to bear in mind that each case depended on its own facts and peculiar circumstances.
- An applicant had to satisfy the court on both of the twin principles.
- On whether the appeal was arguable, it was sufficient if a single bona fide arguable ground of appeal was raised.
- An arguable appeal was not one which had to necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.
- In considering an application brought under the rule the court must have not made definitive or final findings of either fact or law at that stage as doing so could embarrass the ultimate hearing of the main appeal.
- The term “nugatory” had to be given its full meaning. It did not only mean worthless, futile or invalid. It also meant trifling.
- Whether or not an appeal would be rendered nugatory depended on whether or not what was sought to be stayed if allowed to happen was reversible; or if it was not reversible whether damages would reasonably compensate the party aggrieved.
- Where it was alleged by the applicant that an appeal would be rendered nugatory on account of the respondent's alleged impecunity, the onus shifted to the latter to rebut by evidence in the claim.