Standard Limited & 2 others v Wilson Kalya & another t/a Kalya & Company Advocates [2002] KECA 234 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a defamation damages hearing because the applicants could not show real harm beyond wasted costs.
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 appeal which the applicants have filed or intend to file is arguable, that is, not frivolous.
- 2.Whether, unless the stay of proceedings sought is granted, the appeal or intended appeal would be rendered nugatory.
- 3.Whether it is proper for a trial judge to decide contested issues of fact, such as malice, on affidavit evidence (identified as the arguable point but not decided).
Key legal issues
#What an applicant must demonstrate to obtain a stay of proceedings under rule 5(2)(b).
The applicant must satisfy two cumulative requirements: that the appeal or intended appeal is arguable (not frivolous), and that unless the stay is granted the appeal, if successful, would be rendered nugatory. Failure on either limb is fatal to the application.
The court restated the twin principles governing rule 5(2)(b) applications and stressed that both must be met. The applicants cleared the arguability limb, the court being prepared to assume the appeal was arguable, but failed the nugatory limb. Because the requirements are cumulative, the notice of motion had to be dismissed notwithstanding the arguability of the appeal.
Whether the intended appeal would be rendered nugatory if a stay of proceedings was refused.
No. An assessment of damages in the High Court would not render the success of the appeal nugatory; if the appeal succeeded, the High Court proceedings would automatically be rendered unnecessary and an appropriate order for costs would remedy that prejudice.
Adopting the reasoning in the Silverstein and Kenya Commercial Bank v Benjoh applications, the court held that where the relief sought on appeal remains available after the proceedings below conclude, and any wasted costs can be compensated, the nugatory test is not met. Counsel for the applicants himself could not identify any prejudice beyond that curable by costs, so the second requirement failed.
Whether a trial judge may decide a contested issue of fact, such as malice, on affidavit evidence in a striking-out application.
The court held the point arguable but did not decide it; it recorded that malice is a matter of fact to be determined by a judge on evidence adduced before him, and treated the question as a sufficient arguable issue for rule 5(2)(b), leaving it for the appeal.
The applicants' defence pleaded qualified privilege under section 7 of the Defamation Act and denied malice, while the respondents alleged malice. Conflicting affidavits were sworn on the issue. Whether a judge could resolve such a contested factual issue on affidavit evidence was framed as the arguable point; the court assumed arguability in the applicants' favour without determining the substantive question.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both cumulative requirements: an arguable appeal or intended appeal, and that the appeal will be rendered nugatory if the stay is not granted.
- A single arguable issue is sufficient to satisfy the arguability limb of rule 5(2)(b).
- A stay of proceedings will not be granted where the only consequence of the proceedings continuing is that, if the appeal succeeds, the proceedings below would be rendered unnecessary, a prejudice curable by an order for costs.
- There is no absolute principle that a stay of proceedings can never be granted under rule 5(2)(b); each case must depend on its own facts.
- Whether a party acted with malice is a question of fact to be determined by a judge on evidence adduced before him.
Court orders
#- 1.The notice of motion lodged in this Court on 26th October, 2001 be and is hereby dismissed.
- 2.The costs of the motion shall be costs in the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court (superior court) at Eldoret
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of proceedings pending appeal)
Relief refused
#Stay of proceedings in the superior court at Eldoret pending the appeal or intended appeal.
The applicants satisfied the arguability limb but failed the nugatory limb of rule 5(2)(b): counsel could not demonstrate how refusal of the stay would render the appeal nugatory, since an assessment of damages in the High Court would not prejudice the appeal and costs would remedy any duplication of proceedings.
Costs
The costs of that motion shall be costs in 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.
The upshot of all this is that the applicants have failed to satisfy us on the second requirement and as they were bound to satisfy us on both requirements, their notice of motion lodged in this Court on 26th October, 2001, fails and we order that it be and is hereby dismissed.
The costs of that motion shall be costs in the appeal.
one arguable issue is sufficient for the purpose of rule 5 (2) (b)
Whether a party is or is not actuated by malice when doing a particular act is a matter of fact to be determined by a judge on evidence adduced before him.
If the High Court proceeds to assess damages in this particular matter, that alone would not render the success of this appeal nugatory.
The Court is not laying down any principle that no order for stay of proceedings will ever be made; that would be contrary to the provisions of rule 5 (2) (b) of the Court's own rules
Issues in the judgment
#The second respondent is named 'Simon Kalya' in the cause title but referred to as 'Simon Lilan' in the body of the ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kenya Agricultural Research Institute v Farah Ali, Chairman Isahakia Self Help Group (sued on his own behalf and on behalf of the members of the group & Commissioner of Lands (Civil Application 18 of 2016) (Civ) [2016] KECA 647 (KLR)[2016] KECA 647 (KLR)15 Apr 2016followed
- Michael Njai v Juan Torres & another [2015] KEELRC 1054 (KLR)[2015] KEELRC 1054 (KLR)28 May 2015
Cite this brief
#Cite this brief
Caselaw, "Standard Limited & 2 others v Wilson Kalya & another t/a Kalya & Company Advocates [2002] KECA 234 (KLR)", Case Analysis (2002). Civil Application No. NAI 369 of 2001 (196/01 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/234/eng@2002-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.