Athi Water Services Board v Nairobi City Water & Sewerage Company [2010] KECA 139 (KLR)
The bottom line
#Kenya's Court of Appeal paused High Court orders against Athi Water Services Board because the appeal raised real issues that could become meaningless if enforcement proceeded.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable and not frivolous
- 2.Whether the intended appeal would be rendered nugatory unless a stay of execution and a stay of proceedings are granted pending its hearing and determination
Key legal issues
#Whether the intended appeal was arguable
The court found the appeal arguable, noting the respondent itself conceded at least one arguable point regarding dispensation of the mandatory notice to the Registrar under Order LIII.
The applicant raised grounds including the judge proceeding ex parte without mandatory notice under rule 1(3) of Order LIII, the granting of what was in substance a mandatory injunction under the guise of a stay, the respondent's lack of locus standi, and the inappropriateness of judicial review for a contract of employment as a private-law matter. The respondent conceded the notice point. On this basis the appeal was not frivolous.
Whether the intended appeal would be rendered nugatory without a stay
The court held the nugatory test satisfied, citing possible irregular service of the named employees as directors and potential disruption of Nairobi's water supply.
The court accepted that if the order of 25th May 2010 were enforced, the respondent's named employees would have irregularly served as managing and financial directors, and that enforcement obtained, as the applicant alleged, irregularly and in abuse of court process would prejudice the applicant and the general public. It therefore concluded the appeal would be rendered nugatory if no stay were granted.
Legal principles established
#- An applicant for a stay under rule 5(2)(b) must satisfy both the arguability of the intended appeal and that it would be rendered nugatory absent a stay.
- A stay does not reverse, annul, undo or suspend what has already been done.
- An arguable appeal is one which is not frivolous; conclusive views on the merits are not expressed at the stay stage.
Court orders
#- 1.Stay of execution of the orders of the superior court issued on 25th May 2010 pending the filing and determination of the intended appeal
- 2.Stay of proceedings in relation to High Court Miscellaneous Application No. 195 of 2010 pending the determination of the intended appeal
- 3.Costs of the application to be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C. Misc. Appl. No. 195 of 2010
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We therefore see that the applicant has shown the intended appeal would be rendered nugatory if no stay is granted and accordingly we grant a stay of execution of the orders of the superior court issued on 25th May 2010 pending the filing and determination of the intended appeal.
We also grant a stay of proceedings in relation to High Court Miscellaneous application No 195 of 2010 pending the determination of the intended appeal and order that the costs of this application be in the intended appeal.
An applicant seeking a stay under rule 5 (2) (b) of the Court's Rules has to satisfy the Court that his intended appeal was arguable, that is, that the intended appeal was not frivolous, and that unless the order of stay were granted, the intended appeal if successful, would be rendered nugatory. Both requirements have to be proved.
We are, however, alive to the fact that the time to express conclusive views on any matter in an application such as this is not at this stage, but at the hearing of the intended appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Athi Water Services Board v Nairobi City Water & Sewerage Company [2010] KECA 139 (KLR)", Case Analysis (2010). Civil Application No. 135 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/139/eng@2010-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.