County Council of Narok & another v Kalyasoi Farmers Co-perative Society Ltd & 6 others [2005] KECA 31 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal would be rendered nugatory if a stay of the High Court proceedings were refused
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.
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.
Whether the court should exercise its discretion to stay proceedings given the contempt-related genesis of the matter and the earlier refused application
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.
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.