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Court of AppealDismissedCiv Appli 150 of 2006 (UR 85/2006)

City Council of Nairobi v Barclays Bank of Kenya Limited

Court of Appeal of Kenya
13 October 2006
1,363 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a High Court ruling that quashed Nairobi City Council's prosecution of a Barclays Bank manager, because the Council still had other options.

What this practically means

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Executive summary

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The City Council of Nairobi applied under rule 5(2)(b) of the Court of Appeal Rules for a stay of execution of a High Court judgment (Wendo, J) which, by way of judicial review, quashed criminal proceedings the Council had instituted against the manager of Barclays Bank of Kenya Limited for failing to comply with a notice under the Public Health Act to repaint premises on Muindi Mbingu Street. The High Court had granted certiorari quashing the charge sheet and proceedings in Criminal Case No. M1509(A)/05 but refused prohibition and mandamus, while observing that the subordinate court should have been joined as a respondent. The Council intended to appeal against the certiorari order in Civil Appeal No. 90 of 2006. The Court of Appeal (O'Kubasu, Onyango Otieno and Deverell, JJA) restated the settled twin principles: the applicant must show the appeal is arguable and that, if stay is refused and the appeal succeeds, its results will be rendered nugatory. The court found the appeal arguable on the jurisdiction question arising from the non-joinder of the subordinate court. However, it held the nugatory principle was not satisfied: the quashing judgment remains valid on record and cannot itself be stayed, and the Council remains free to reframe the charge, amend the law, afford hearings, and prosecute through authorised officers while the appeal is pending. The application was dismissed with costs to the respondent.

Questions the Court framed

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

  1. 1.Whether the intended appeal (Civil Appeal No. 90 of 2006) is arguable
  2. 2.Whether, if the appeal succeeds, its results would be rendered nugatory if stay is not granted

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The appeal was arguable because the question whether the High Court had jurisdiction to quash proceedings in the subordinate court's custody when that court was not joined as a party was arguable.

Reasoning

The court applied the settled first principle of rule 5(2)(b): the applicant need only show the appeal is not frivolous. Wendo J herself had noted the court should have been joined as a respondent, making the jurisdiction question a fit arguable point for the intended appeal.

p. 2
02

Whether the appeal would be rendered nugatory if stay was not granted

Holding

No. The quashed charge and proceedings remain on record and valid until the appeal is heard, and the Council may reframe the charge, amend the law, afford hearings, and prosecute through authorised officers in the interim.

Reasoning

The court held the judgment could not be stayed and remained valid on record. The judgment did not bar the Council from reframing a lawful charge, amending the law, or prosecuting properly in future, so no nugatory result would follow from refusing stay.

p. 2

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate that the appeal is arguable and that, if stay is not granted and the appeal succeeds, its results will be rendered nugatory; both principles must be satisfied.
  • A judgment quashing a charge and proceedings remains valid on record pending appeal and cannot itself be stayed; failure to stay it does not render a successful appeal nugatory where the applicant retains alternative remedies.

Court orders

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  1. 1.The application for stay of execution is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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

majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Civil Application No. 1261 of 2005
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the High Court judgment and order of Wendo, J dated 17th March 2006 pending the hearing and determination of Civil Appeal No. 90 of 2006

The nugatory aspect principle was not demonstrated; the judgment quashing the charge and proceedings remains valid on record and the Council can reframe the charge, amend the law, and prosecute properly in future while the appeal is pending

p. 3

Costs

The application is dismissed with costs to the respondent.

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.

The principles that guide the Court when considering such an application are now well settled and they are that for the applicant to reap the benefits of the same rule, he must demonstrate that the appeal, which in this case is Civil Appeal No. 90 of 2006, is arguable or in other words, is not a frivolous appeal.
p. 1Rule 5(2)(b) principles - arguability
That judgment will remain on record and will be valid till the appeal is heard. It cannot be stayed and no court can stop referring to it till the appeal is heard and determined.
p. 2A quashing judgment cannot itself be stayed
That being our view of the matter, this application cannot succeed as the second principle, i.e. that the results of the appeal, if successful, would be rendered nugatory, has not been demonstrated by the applicant. The application is dismissed with costs to the respondent.
p. 3Final orders - dismissal with costs

Issues in the judgment

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minor

Conflicting dates for the High Court judgment

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, "City Council of Nairobi v Barclays Bank of Kenya Limited", Case Analysis (2006). Civ Appli 150 of 2006 (UR 85/2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/335/eng@2006-10-13

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