Kisii Municipal Council v Masosa Construction Company Limited [2011] KECA 136 (KLR)
The bottom line
#Kenya's Court of Appeal refused a second stay of execution because the applicant ignored a High Court conditional stay for six months.
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
- 2.Whether, absent compliance with the conditional stay granted by the High Court, the Court of Appeal should grant a further stay of execution pending the intended appeal
Key legal issues
#Whether a second stay of execution should be granted by the Court of Appeal where the High Court has already granted a conditional stay which the applicant has not complied with
The application fails; the applicant cannot ignore the superior court's conditional stay order and then seek different orders from the Court of Appeal, especially after a six-month delay without explanation.
Counsel for the respondent conceded the intended appeal was arguable on limitation, and the Court agreed. But on the nugatory-justice limb, the applicant had already secured a conditional stay from Makhandia, J requiring payment of half the decretal sum and deposit of the balance, which it never complied with. Coming to the Court of Appeal six months later, without explaining the delay or the non-compliance, the applicant was effectively behaving as if the superior court's order did not exist. Equity and judicial comity precluded substituting fresh orders.
Whether the intended appeal is arguable
The Court accepted, on counsel's concession, that the intended appeal is arguable at least on the issue of limitation.
The respondent's counsel conceded that the intended appeal was arguable at least on the issue of limitation, and the Court saw no reason to disagree. However, arguability alone was insufficient; the applicant also had to satisfy the nugatory-justice test, which it failed given its non-compliance with the High Court's conditional stay order and its unexplained six-month delay in lodging the present motion.
Legal principles established
#- A party who has obtained a conditional order of stay in the superior court and has not complied with it, nor explained inordinate delay in seeking a further stay in the Court of Appeal, is not entitled to a stay under Rule 5(2)(b); the Court of Appeal will not impose different orders where an existing stay order subsists.
- An applicant for discretionary relief must explain both non-compliance with existing court orders and any delay in bringing the application.
Court orders
#- 1.The applicant's notice of motion dated 21st March, 2011 and lodged on 28th March, 2011 is dismissed
- 2.Costs of the motion awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisii
- H.C.C.C. No. 67 of 2007
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending intended appeal)
Relief refused
#Stay of execution of the judgment and decree in Kisii H.C.C.C. No. 67 of 2007 pending the lodging, hearing and determination of the intended appeal
The applicant had already obtained a conditional stay in the superior court, had not complied with it, and took some six months to approach this Court without explaining the delay; the applicant could not behave as if the superior court's order did not exist
Costs
The applicant's notice of motion is dismissed with the costs thereof to the respondent.
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.
the applicant has obtained an order of stay in the superior court and there is no reason for us to impose different orders
the applicant’s notice of motion dated the 21st March, 2011 and lodged in the Court on the 28th March, 2011, fails and we order that it be and is hereby dismissed with the costs thereof to the respondent
he does not say why the applicant has not complied with the order of stay given by the superior court, and why there was a delay of some six months before coming to this Court after the conditional order of stay was granted
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisii Municipal Council v Masosa Construction Company Limited [2011] KECA 136 (KLR)", Case Analysis (2011). Civil Application No. NAI. 85 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/136/eng@2011-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.