Kenya Shell Limited v Charles Migui Maranga & 1 other
The bottom line
#Winning the 'arguable appeal' test is not enough in Kenya — you must also prove your appeal becomes worthless without a stay, or the court will refuse one.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable, as the question whether the 1995 agreement was imposed on the respondents and the validity of termination under either the 1988 or 1995 agreement were debatable points
The court found the dispute over which agreement (1988 or 1995) governed the petrol station operation raised debatable points. Counsel's submission that both agreements contained termination clauses and that termination was validly effected furnished a further arguable point. Arguability was therefore satisfied, but this alone was insufficient.
Nugatory value of the intended appeal
The applicant failed to establish that the appeal would be rendered nugatory absent a stay; the lease obligations took effect only from 1st May 1999 and no irreparable loss on profit margins was demonstrated
The court noted the lease terms did not take effect until 1st May 1999 and declined to presume the appeal would not be heard by then. The applicant also failed to show, even before the trial judge, that its profit margin was so low that it would suffer irreparable loss if the injunction stood. The nugatory test thus failed and the application was dismissed.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory if the stay or injunction sought is not granted
Court orders
#- 1.The application under Rule 5(2)(b) is dismissed with costs to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 643 of 1998
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Shell Limited v Charles Migui Maranga & 1 other", Case Analysis (1998). Civil Application No. Nai. 284 of 1998 (108/98). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/159/eng@1998-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.