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Court of AppealDismissedCivil Application No. NAI. 79 of 2002

Standard Limited v Association of Kenyan Insurers & another [2002] KECA 208 (KLR)

Court of Appeal
30 April 2002
201 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused a second stay of execution because an earlier stay order existed, was ignored, and was never appealed.

What this practically means

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Executive summary

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This brief records a short interlocutory order of the Court of Appeal at Nairobi made on 30 April 2002 in Civil Application No. NAI. 79 of 2002. The Standard Limited and the Association of Kenyan Insurers applied under rule 5(2)(b) of the Court of Appeal Rules for a stay of execution pending the hearing and determination of an intended appeal from the judgment of the High Court of Kenya at Meru (Tuiyot, J) dated 27 November 2001 in H.C.C.C. No. 5 of 2000, in which Charles Kariuki trading as Charles Kariuki & Co. Advocates was the respondent. The court identified two dispositive facts. First, an order for stay had already been made by the superior court, but it had not been complied with. Secondly, the present application was a second application for a stay, and the applicants, if dissatisfied with the superior court's order, had not preferred an appeal therefrom. The court held that in all the circumstances it was unable to grant the application, and it dismissed the application with costs. The order was made collectively by Omolo, Lakha and Owuor, JJ.A. as an 'Order of the Court', without separate opinions and without dissent. No case authorities were cited; the only legal provision referenced is rule 5(2)(b) of the Court of Appeal Rules. The High Court judgment itself was neither affirmed nor disturbed, since the Court was dealing only with the stay application and the appeal was merely intended, not on file. The binding takeaway for lower courts and litigants is that a party dissatisfied with a superior court's ruling on stay must pursue an appeal against that ruling rather than return to the Court of Appeal with a second stay application, particularly where the earlier stay order has not been complied with.

Questions the Court framed

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

  1. 1.Whether the Court of Appeal should grant a second application for stay of execution under rule 5(2)(b) where an order for stay has already been made by the superior court but not complied with, and no appeal was preferred against that order.

Key legal issues

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01

Whether a second application for stay of execution under rule 5(2)(b) should be granted where the superior court has already ordered a stay which was not complied with and no appeal was preferred against that order

Holding

The application was refused. A party dissatisfied with a superior court's order on stay must appeal against that order; the Court of Appeal will not grant a fresh stay where an earlier stay order remains uncomplied with and unappealed.

Reasoning

The court identified two dispositive facts: an order for stay had already been made by the superior court but was not complied with, and the present application was a second attempt to obtain a stay. The applicants, if dissatisfied with the superior court's order, had not preferred an appeal therefrom, which was the proper course. In all the circumstances the court was unable to grant the application and dismissed it with costs.

p. 2

Legal principles established

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  • Where an order for stay has already been made by the superior court but has not been complied with, and the applicant did not appeal against that order, the Court of Appeal will not entertain or grant a second application for stay; the proper remedy for dissatisfaction with the superior court's order is an appeal against that order.

Court orders

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  1. 1.The application for stay of execution pending the hearing and determination of the intended appeal is dismissed with costs.

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 Meru
H.C.C.C. No. 5 of 2000
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (the 'Rules of this Court')

Relief refused

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Stay of execution pending the hearing and determination of the intended appeal from the judgment of the High Court of Kenya at Meru (Tuiyot, J) dated 27 November 2001 in H.C.C.C. No. 5 of 2000

An order for stay had already been made by the superior court but was not complied with; this was a second application for a stay, and the applicants, if dissatisfied with the superior court's order, had not preferred an appeal therefrom.

p. 2

Costs

The application is dismissed with costs (i.e., the applicants bear the costs of the application).

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.

An order for stay was already made by the superior court but not complied with. This is now a second application for a stay.
p. 2Second application for stay where superior court's stay order uncomplied with
If the applicant was dissatisfied with the order of the superior court an appeal was not preferred therefrom.
p. 2Duty to appeal against the superior court's stay order rather than renew the application
In all the circumstances, we are unable to grant this application. It is dismissed with costs.
p. 2Final orders - dismissal of the stay application with costs

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, "Standard Limited v Association of Kenyan Insurers & another [2002] KECA 208 (KLR)", Case Analysis (2002). Civil Application No. NAI. 79 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/208/eng@2002-04-30

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