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Court of AppealDismissedCivil Application Nos. NAI. 324 & 325 of 2005· [2005] KECA 31 (KLR)

County Council of Narok & another v Kalyasoi Farmers Co-perative Society Ltd & 6 others [2005] KECA 31 (KLR)

Court of Appeal of Kenya
16 December 2005
1,036 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause High Court proceedings, confirming that the party seeking a stay must prove their appeal would otherwise become worthless.

What this practically means

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Executive summary

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In a single ruling of the Court of Appeal at Nairobi, delivered on 16th December 2005 by a bench of Tunoi, O'Kubasu and Deverell, JJA, the court disposed of two consolidated applications (Civil Application Nos. NAI. 324 and 325 of 2005) by the County Council of Narok and Stanislas Nyagaka Ondimu under rule 5(2)(b) of the Court of Appeal Rules, seeking a stay of the ruling and orders of the High Court at Nairobi (Ojwang, J.) delivered on 2nd December 2005 in H.C.C.C. No. 664 of 2005 and a stay of proceedings. The court noted an earlier application by the County Council, Civil Application No. NAI. 166 of 2005, seeking similar orders, which had been refused with reasons delivered on 14th October 2005. In those reasons the court had observed that the applicant had rushed to the Court of Appeal fearing committal for contempt although the learned Judge had made no committal order, and that the applicant should return to the superior court to explain the apparent disobedience or purge the contempt. On the nugatory limb, the court applied Silverstein v Chesoni and followed Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd, holding that the appeal whose success matters is the one already filed in the Court of Appeal, and that since a successful appeal would render the High Court proceedings unnecessary and costs could remedy any unnecessary hearing, the appeal would not be rendered nugatory. The court stressed it was not laying down any principle against stays of proceedings generally, as each case depends on its own facts. Both applications were dismissed with costs to the respondents.

Key legal issues

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01

Whether the intended appeal would be rendered nugatory if a stay of the High Court proceedings were refused

Holding

It would not. The relevant appeal is the one already filed in the Court of Appeal; if it succeeded, the High Court proceedings would have been rendered unnecessary but an order for costs could remedy that, so the appeal would not be worthless.

Reasoning

Following Silverstein v Chesoni and Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd, the court held that the nugatory test applies to the appeal already filed in the Court of Appeal, not the appeal pending in the High Court. The applicant bears the onus on this second limb. If the appeal succeeded, the High Court proceedings would be determined in accordance with it; any unnecessary hearing in the superior court could be remedied by an appropriate costs order, so the appeal would not have been worthless.

p. 2
02

Whether the court should exercise its discretion to stay proceedings given the contempt-related genesis of the matter and the earlier refused application

Holding

The court declined to grant a stay, noting the applicant had rushed to court fearing committal for contempt when no committal order had been made, and that the proper course was to return to the learned Judge to explain or purge the contempt.

Reasoning

The court recalled its earlier ruling of 14th October 2005 refusing a similar application by Narok County Council, in which it observed that the applicant had moved to the Court of Appeal apprehending committal although no committal order had issued. The application below was intended to give the applicant a right to be heard on the failure to comply with a court order, engaging the dignity and authority of the court. Taking the genesis of the matter into account, the court concluded the applications should be dismissed.

p. 2

Legal principles established

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  • On an application for stay of proceedings pending appeal, the appeal whose success would be rendered nugatory is the appeal already filed in the Court of Appeal, not the appeal pending in the High Court.
  • The burden of showing that the intended appeal would be rendered nugatory without a stay lies on the applicant, and each case depends on its own facts; where the appeal may be heard and, if successful, determine the superior court proceedings, the appeal is not nugatory even if the High Court hearing proves unnecessary.
  • The refusal of a stay of proceedings in a particular case lays down no general principle that no stay of proceedings will ever be granted under rule 5(2)(b); the discretion remains and each case turns on its own facts.
  • Court orders must be obeyed even if they are to be challenged thereafter; a party appearing to disobey a court order should return to the judge who made the order to explain the disobedience or purge the contempt.

Court orders

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  1. 1.The two applications (Civil Application Nos. NAI. 324 and 325 of 2005) be and are hereby dismissed with costs to the respondents
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 664 of 2005
Jurisdiction invoked
rule 5(2)(b) of the Court of Appeal Rules

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, "County Council of Narok & another v Kalyasoi Farmers Co-perative Society Ltd & 6 others [2005] KECA 31 (KLR)", Case Analysis (2005). Civil Application Nos. NAI. 324 & 325 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/31/eng@2005-12-16

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