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Court of AppealDismissedCivil Appli. Nai 4 & 5 of 2007 (Consolidated)

MBARAKI BULK TERMINAL LTD v EAST AFRICAN BULKING SERVICES LTD & 2 others [2007] KECA 51 (KLR)

Court of Appeal of Kenya
16 March 2007
169 words in judgment
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The bottom line

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The Court of Appeal refused to pause the High Court's December 2006 order against Mbaraki Bulk Terminal, meaning the High Court decision now takes effect.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi dated 16th March 2007 on a consolidated application, Civil Appli. Nai 4 & 5 of 2007, by Mbaraki Bulk Terminal Ltd seeking a stay of execution of the ruling and order of the High Court of Kenya at Mombasa (Sergon J.) dated 15th December 2006 in H.C. Miscellaneous Civil Appl. No. 946 of 2005. The respondents were East African Bulking Services Ltd, the District Land Registrar Mombasa, and East African Molassess Company Ltd. The document reproduced contains only the ruling of Deverell JA, who states that he had read the draft rulings of Bosire JA and Githinji JA and concurred with the decision to dismiss the consolidated application with costs for the reasons given by Bosire JA. The full reasoning of Bosire JA, which carries the substantive analysis of the stay application, is not contained in the material supplied, so the grounds on which the stay was refused cannot be stated. The disposition is clear: the consolidated application was dismissed with costs, leaving the High Court order of 15th December 2006 intact and free to be executed. The panel sat as a full coram of three Judges of Appeal and was unanimous. As an interlocutory appellate ruling on stay of execution, it does not disturb the decision of the High Court; it merely refused to suspend that decision pending appeal.

Questions the Court framed

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

  1. 1.Whether a stay of execution of the ruling and order of the High Court (Sergon J.) dated 15th December 2006 should be granted

Key legal issues

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Legal principles established

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  • The Court of Appeal dismissed the application for stay of execution of the High Court ruling and order of 15th December 2006, and that dismissal with costs binds the parties and courts below. The substantive reasons reside in the ruling of Bosire JA, which is not reproduced in the material supplied.

Court orders

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  1. 1.The consolidated application (Civil Appli. Nai 4 & 5 of 2007) was dismissed

The bench

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

concurring

Wrote the judgment

Deverell JA concurred with the decision to dismiss the consolidated application with costs, adopting the reasons given by Bosire JA.

I concur with the decision to dismiss the consolidated application with costs for the reasons given by the Hon. Mr. Justice Bosire, JA.p. 1
BO
majority

Wrote the judgment

concurring
On appeal from
High Court of Kenya at Mombasa
H.C. Miscellaneous Civil Appl. No. 946 of 2005
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal over applications for stay of execution of High Court orders (the judgment text does not state the enabling provision)
Consolidated with
Civil Appli. Nai 4 of 2007, Civil Appli. Nai 5 of 2007

Relief refused

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Stay of execution of the High Court ruling and order of 15th December 2006

The consolidated application was dismissed, so the stay sought was refused

p. 1

Costs

The consolidated application was dismissed with costs (costs awarded against the applicant).

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.

I concur with the decision to dismiss the consolidated application with costs for the reasons given by the Hon. Mr. Justice Bosire, JA.
p. 1Disposition - dismissal of consolidated stay application
Dated and delivered at Nairobi this16th day of March, 2007.
p. 1Delivery of judgment and date of ruling

Issues in the judgment

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material

The document supplied contains only the concurring ruling of Deverell JA. The main ruling of Bosire JA, whose reasons the court adopted, and the ruling of Githinji JA, are not included, so the substantive reasoning for refusing the stay cannot be quoted.

minor

The coram listing shows Bosire and Githinji by surname only; the record does not print their given names or initials, so their names are recorded as printed.

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, "MBARAKI BULK TERMINAL LTD v EAST AFRICAN BULKING SERVICES LTD & 2 others [2007] KECA 51 (KLR)", Case Analysis (2007). Civil Appli. Nai 4 & 5 of 2007 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/51/eng@2007-03-16

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