Karume Investments Limited v Kenya Shell Limited
The bottom line
#Kenya's Court of Appeal froze execution of a High Court land ruling because even one arguable appeal point is enough to justify a stay.
What this practically means
#Executive summary
#Key legal issues
#Twin principles governing stay pending appeal under rule 5(2)(b)
The applicant must show an arguable appeal and that the appeal would be rendered nugatory if stay is refused; the Court's jurisdiction on such an application is limited and does not extend to the merits.
The Court restated the settled principles from Githunguri v Jimba and Butt v Rent Restriction Tribunal. It emphasized that its jurisdiction is restricted to the two tests and it must avoid firm findings on issues for the intended appeal. One arguable point, coupled with special circumstances such as tenants in occupation, suffices.
Arguability of the intended appeal
It is arguable whether the superior court had power to issue the orders of certiorari and mandamus, and the appeal raises substantial issues worth investigating.
The Court accepted Mr Ombwayo's submission that it was arguable whether the superior court had power to issue certiorari and mandamus in the circumstances. Taking the history of the dispute into account, the intended appeal could not be said to be frivolous; the possibility of sale to third parties also supported the nugatory limb.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin tests: an arguable appeal, and that the appeal would be rendered nugatory if stay is refused.
- A single arguable point suffices on a rule 5(2)(b) application.
Court orders
#- 1.Stay of execution of the ruling/order of the High Court (Wendoh, J.) dated 30th July 2008 granted pending the hearing and determination of the intended appeal
- 2.Reiteration of the Court's order of 2nd October 2008 that issuance of the extended Grant for L.R. No. 209/6240 pursuant to the ruling of Wendoh J. dated 30th July 2008 is stayed until the hearing and final determination of the intended appeal
- 3.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Civil Application No. 1534 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, "Karume Investments Limited v Kenya Shell Limited", Case Analysis (2008). Civil Appli. Nai No. 262 of 2008 (UR. 167/09). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/42/eng@2008-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.