Municipal Council of Mombasa & another v Kenya Transport Association [2011] KECA 312 (KLR)
The bottom line
#The Court of Appeal ruled it cannot stay an injunction or a dismissal, and paused hearings only in rare cases, so the Kenyan Transport Association's win stood.
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 Court has jurisdiction under Rule 5(2)(b) to stay execution of the orders of 31st January 2011 and 4th February 2011
- 2.Whether the order of 4th February 2011, being a negative order, is capable of being stayed
- 3.Whether a stay of proceedings in the constitutional petition pending the intended appeal should be granted
Key legal issues
#Characterisation of the exparte conservatory order as an injunctive order
Although the learned Judge described the order as a conservatory order, in substance it was a restraining order of injunction, so no stay of its execution lies under Rule 5(2)(b)
The Court looked at substance over form: the order was granted in terms of prayer 2 of the application, which was by its terms and effect a restraining order preserving the status quo ante. The label of conservatory order under the supervisory jurisdiction rules did not change its injunctive character, and the Court's settled position is that it has no jurisdiction under Rule 5(2)(b) to stay execution of injunctions.
Whether the 4th February 2011 order could be stayed
The order dismissing the application to set aside the exparte orders was a negative order incapable of being stayed
A dismissal of an application is a negative order; there is nothing to stay. The word 'confirmed' used by the High Court meant only that the exparte order would remain in force until the inter partes hearing, not that a positive order had been made capable of stay.
Stay of proceedings pending appeal
Stay of proceedings refused; the petition should proceed to hearing where all issues can be conclusively determined
The Court has jurisdiction under Rule 5(2)(b) to stay proceedings but exercises it sparingly. Here the intended appeal is interlocutory and all matters, including the competence of the petition and legality of the Public Private Partnership, could be canvassed at the petition hearing. Refusing the stay served the overriding objective under Sections 3A and 3B of the Appellate Jurisdiction Act.
Legal principles established
#- The Court of Appeal has no jurisdiction under Rule 5(2)(b) to stay execution of an order of injunction
- A negative order, such as the dismissal of an application, is not capable of being stayed
- Stay of proceedings is granted very sparingly and only in exceptional circumstances
- An order of injunction remains in force until set aside on appeal or varied by the court issuing it
Court orders
#- 1.Application dismissed with costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Constitutional Petition No. 6 of 2011
- Jurisdiction invoked
- Sections 3(2), 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the orders of 4th February 2011 and of the exparte orders of 31st January 2011
The 4th February order was negative and not capable of being stayed; the 31st January order was an injunction which the Court has no jurisdiction to stay under Rule 5(2)(b)
Stay of further proceedings in Constitutional Petition No. 6 of 2011 pending the intended appeal
Stay of proceedings is granted sparingly and only in exceptional circumstances; the petition hearing would conclusively determine all issues in furtherance of the overriding objective
Costs
Application dismissed with costs 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 order of 4th February, 2011 dismissing the application to stay or discharge the order of 31 st January, 2011 was a negative order which is not capable of being stayed.
In the result the application is dismissed with costs to the Respondent.
an order of injunction, like a judgment, remains in force until it is either set aside on appeal or set aside or varied by the court issuing it.
Issues in the judgment
#The judgment refers to the scheduled inter partes hearing date inconsistently - once as 6th February 2011 and elsewhere as 16th February 2011
The judgment also refers to an application dated 29th January 2011 and separately to the application dated 31st January 2011, though the substance appears to be the same application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Municipal Council of Mombasa & another v Kenya Transport Association [2011] KECA 312 (KLR)", Case Analysis (2011). Civil Application No. Nai. 26 of 2011 (UR. 19/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/312/eng@2011-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.