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Court of AppealStruck OutCivil Appli 195 of 2005

Consolidated Bank of Kenya & 2 others v Usafi Limited [2006] KECA 180 (KLR)

Court of Appeal of Kenya
14 July 2006
ROR.S.C. OmoloPWP.N. WakiWDW.S. Deverell
993 words in judgment
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The bottom line

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Kenya's Court of Appeal has no power to pause an injunction while an appeal is pending — the bank's application was struck out entirely.

What this practically means

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Executive summary

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This ruling of the Court of Appeal (Omolo, Waki and Deverell, JJ A) resolves a recurring interlocutory question: whether rule 5(2)(b) of the Court of Appeal Rules empowers the Court to stay an injunction granted by the High Court. Consolidated Bank of Kenya, Dolphin Auctioneers and Centenary Valuers & Property Consultants moved under rule 5(2)(b) by Notice of Motion dated 12 July 2005 for a stay of the order of Mutungi J dated 27 May 2005, which had restrained them from exercising the statutory power of sale over L.R. No. 36/VII/272 owned by Usafi Limited, pending an intended appeal. Counsel for the applicants characterised the relief as a 'stay of execution' of the injunction. The Court, raising the jurisdiction question from the bench, held that rule 5(2)(b) in its present form permits only three orders — a stay of execution, an injunction, or a stay of further proceedings — and that 'a stay of an injunction' is not among them, an omission the Rules Committee may well have intended since such a stay would nullify the injunction before the appeal against its grant was heard. Adopting the White Book definition of an injunction, the Court reasoned that once an injunction is ordered it is in force and no further proceedings are needed to give it effect. The Notice of Motion was therefore incompetent and was struck out with no order as to costs. The Court added, in passing, that the High Court judge's delay in delivering the ruling was inexcusable. The ruling of 27 May 2005 was not disturbed.

Questions the Court framed

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

  1. 1.Whether rule 5(2)(b) of the Court of Appeal Rules bestows on the Court of Appeal the jurisdiction to stay an injunction.
  2. 2.Whether the stay of an injunction sought could be brought within 'a stay of execution' as permitted by rule 5(2)(b).
  3. 3.Whether, in consequence, the Notice of Motion dated 12th July 2005 is competent.

Key legal issues

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01

Whether rule 5(2)(b) of the Court of Appeal Rules confers jurisdiction on the Court of Appeal to stay an injunction.

Holding

No. The rule, in its present form, permits only three orders: a stay of execution, an injunction, and a stay of further proceedings. A stay of an injunction is not included, and the Court of Appeal therefore has no jurisdiction to grant it.

Reasoning

The Court construes rule 5(2)(b) literally. In its present form the rule allows only three orders: a stay of execution, an injunction, or a stay of further proceedings. 'A stay of an injunction' does not appear, an omission the Court considers may have been deliberate, because to stay an injunction would nullify it before the appeal against its grant was heard. Jurisdiction therefore fails at the threshold and the Court does not reach arguability or nugatory-impact.

p. 3
02

Whether a stay of an injunction falls within 'a stay of execution' under rule 5(2)(b).

Holding

No. The Court rejected counsel's characterisation: an injunction, once ordered, is in force of its own force and requires no execution, so there is nothing capable of being stayed as an execution.

Reasoning

Mr Majanja argued that staying an injunction is in substance staying its execution. The Court rejects the characterisation. Relying on the Glossary definition in the White Book 2003, an injunction is an order prohibiting or requiring some act; once made it is in force of its own force and no further proceedings are needed to give it effect. It follows that there is no 'execution' of an injunction to stay, and one cannot stay an injunction while at the same time sustaining it on the record.

p. 3
03

Whether the delay by the superior court in delivering its ruling after hearing the injunction application was excusable.

Holding

The Court found the delay inexcusable, although this was an obiter remark carrying no order, as the application was disposed of on jurisdiction alone.

Reasoning

Although the application was disposed of on jurisdiction alone, with the Court stating it needed say no more, it volunteered a pointed remark on judicial case management. The delay by Mutungi J in delivering his ruling after hearing the injunction application was, in the circumstances of the case, inexcusable. The observation carries no order and is obiter, but it signals the Court's intolerance of delayed judgments in the superior court.

p. 3

Legal principles established

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  • Rule 5(2)(b) of the Court of Appeal Rules permits only a stay of execution, an injunction, or a stay of any further proceedings; it does not confer jurisdiction on the Court of Appeal to order a stay of an injunction.
  • An application to stay an injunction cannot be characterised as an application for a stay of execution under rule 5(2)(b), because an injunction takes effect once ordered and no further proceedings are required to give it effect.

Court orders

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  1. 1.The Notice of Motion dated 12th July 2005 is incompetent and is hereby struck out.
  2. 2.No order as to the costs of the Notice of Motion.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RO
majority
PW
majority
WD
majority
On appeal from
High Court of Kenya (Milimani Commercial Court)
HCCC No. 413 of 2003
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, invoked by the applicants; the Court held the rule confers no jurisdiction to stay an injunction

Relief refused

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Stay of the order of Mutungi J dated 27th May 2005 (the injunction restraining the applicants from exercising the statutory power of sale over L.R. No. 36/VII/272) pending the hearing and determination of the intended appeal

The Court held that rule 5(2)(b) of the Court of Appeal Rules confers no jurisdiction to stay an injunction; the motion was struck out as incompetent without reaching the arguability or nugatory-impact grounds.

p. 3

Costs

No order as to the costs of the Notice of Motion dated 12th July 2005; the motion was struck out "with no order as to the costs thereof".

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.

Having come to the conclusion that we have no jurisdiction under rule 5(2)(b) to grant the order sought we need say no more than that the Notice of Motion dated 12th July 2005 is incompetent and we order that it be and is hereby struck out with no order as to the costs thereof.
p. 3Final orders – motion struck out as incompetent; no order as to costs
“A stay of an injunction” is not included in that provision. The omission may well have been intended by the Rules Committee since to grant a stay of an injunction would have the effect of nullifying the injunction before the appeal against its grant had been heard.
p. 3Rule 5(2)(b) does not confer jurisdiction to stay an injunction
We are of the view that once an injunction has been ordered it is in force and no further proceedings are required to give effect to it.
p. 3Effect of an injunction order – nothing to execute
We are unable to appreciate how one can stay an order for an injunction and yet at the same time sustain it on record.
p. 3Impossibility of staying an injunction while sustaining it on record
The Court may in any civil proceedings, where a notice of appeal has been lodged in accordance with rule 74, order a stay of execution, an injunction or a stay of any further proceedings.
p. 2Text of rule 5(2)(b) of the Court of Appeal Rules
We must add that the delay in delivering the ruling by the learned Judge was, in the circumstances of the case, inexcusable.
p. 3Obiter criticism of judicial delay in delivering rulings

Issues in the judgment

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minor

The suit number of the decision below is internally inconsistent: the heading describes the intended appeal as from a ruling in 'MILIMANI COMMERCIAL H.C. C. NO. 413 OF 2003', while the body states the ruling was delivered 'in HCCC No. 657 of 2005'. The Chamber Summons was dated 1st July 2003, which is consistent with the 2003 number and suggests the 2005 number is an error.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Consolidated Bank of Kenya & 2 others v Usafi Limited [2006] KECA 180 (KLR)", Case Analysis (2006). Civil Appli 195 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/180/eng@2006-07-14

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