Sammu Mutua Makove (Commissioner of Insurance) v Statutory Manager United Insurance Company Limited & 198 others [2010] KECA 352 (KLR)
The bottom line
#Kenya's Court of Appeal halted winding up proceedings against United Insurance because the trial judge's remarks suggested bias, protecting the right to a fair hearing.
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 from the ruling of the High Court dismissing the application to file a supplementary verifying affidavit is arguable
- 2.Whether, if stay of the winding up proceedings is not granted, the appeal would be rendered nugatory
Key legal issues
#Principles governing stay of proceedings under Rule 5(2)(b)
The applicant must show the appeal is arguable and that, if successful, it would be rendered nugatory unless proceedings are stayed; the Court is generally reluctant to stay proceedings as a matter of course.
The Court restated the settled two-limb test for Rule 5(2)(b) applications, drawing on Silverstein v Chesoni: stay of proceedings is exceptional and each case must depend on its own facts. Having scrutinised the grounds of appeal, the Court found the appeal arguable and then turned to the nugatory question, which it resolved on the bias and public-interest grounds raised by the Commissioner.
Effect of a trial judge's pre-emptory remarks on the fairness of continuing proceedings
Remarks by a trial judge suggesting a pre-formed opinion that a party's cause is doomed create a well-founded apprehension of bias, vitiating the trial and justifying a stay of proceedings pending appeal.
The trial judge had commented that the petition 'appears to be a doomed cause' and had formed opinions on contested legal questions before ruling. The Court held, by reference to Section 77(9) of the Constitution (as then in force), that a litigant asserting a civil right is entitled to a fair hearing before an impartial court, and that the applicant's apprehension of bias was not unfounded, warranting a stay rather than allowing the trial to conclude.
Legal principles established
#- The Court of Appeal will not stay proceedings in the superior court as a matter of course; an applicant must demonstrate both an arguable appeal and that the appeal would be rendered nugatory unless stay is granted.
- Where an applicant demonstrates that he is not likely to receive a fair trial before an impartial tribunal, the Court should stay the proceedings pending appeal.
Court orders
#- 1.The proceedings in the High Court Winding Up Cause No. 22 of 2006 be stayed pending the hearing and determination of Civil Appeal No. 279 of 2009
- 2.The costs of this application shall be costs in the aforesaid appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Milimani Commercial Court, Nairobi
- Winding Up Cause Number 22 of 2006
- 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.
Before the court can exercise its discretion in favour of the applicant, the applicant should demonstrate that the appeal is arguable and that unless the winding up proceedings are stayed the appeal, if it ultimately succeeds, would be rendered nugatory.
By Section 77 (9) of the Constitution, the petitioner who is seeking a civil right is, among other things, entitled to a fair hearing before an impartial court.
Bias or impartiality vitiates a trial and where as in this case, the applicant has demonstrated that he is not likely to get a fair trial of the civil right or that the trial court is not impartial, the court should stop the proceedings by granting a stay of proceedings pending appeal.
Accordingly, we allow the application and order that the proceedings in the High Court Winding Up Cause No. 22 of 2006 be stayed pending the hearing and determination of Civil Appeal No. 279 of 2009. The costs of this application shall be costs in the aforesaid appeal.
Issues in the judgment
#The applicant's name appears inconsistently within the judgment: the cause title reads 'SAMMU MUTUA MAKOVE' while the supporting affidavit and body read 'Sammy Mutua Makove'.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Frank Mwangi Mathews v Elizabeth Hannah Waithera & 22 others [2018] KEELC 1655 (KLR)[2018] KEELC 1655 (KLR)27 Sept 2018
- Royal Media Services Limited & another v Macharia Waiguru [2015] KECA 689 (KLR)[2015] KECA 689 (KLR)22 May 2015
- Samuel Kimenju Mbuthi & 2 others v Republic [2015] KECA 803 (KLR)[2015] KECA 803 (KLR)13 Apr 2015
Cite this brief
#Cite this brief
Caselaw, "Sammu Mutua Makove (Commissioner of Insurance) v Statutory Manager United Insurance Company Limited & 198 others [2010] KECA 352 (KLR)", Case Analysis (2010). Civil Application No. 343 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/352/eng@2010-03-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.