Kenya Hotel Properties Limited v Willesden Investments Ltd [2011] KECA 388 (KLR)
The bottom line
#The Court of Appeal dismissed Kenya Hotel Properties' application because you cannot stay a dismissal that ordered nothing, and hiding an existing stay is abuse of process.
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 against the ruling of Muchelule, J is arguable
- 2.Whether, if the intended appeal succeeds, it will be rendered nugatory unless an injunction or stay of proceedings is granted
- 3.Whether there is anything capable of being stayed where the order impugned dismissed and struck out a suit
- 4.Whether the application was an abuse of the court process given the applicant's nondisclosure of a stay obtained in the High Court
Key legal issues
#Test for relief under rule 5(2)(b)
The applicant must establish both an arguable appeal and that the appeal would be rendered nugatory absent the orders sought
The court restated the settled principles from Ishmael Kagunyi Thande v Housing Finance Company of Kenya Ltd, drawing on Githunguri v Jimba Credit Corporation Ltd No. 2 and J.K. Industries v Kenya Commercial Bank, that rule 5(2)(b) jurisdiction is discretionary and both principles must be satisfied before relief is granted.
Whether a stay can issue where the impugned order dismissed/struck out a suit
No stay or injunction can issue because a striking-out/dismissal order leaves nothing to stay or restrain
Applying Western College of Arts and Applied Sciences v Oranga, the court held that where the High Court has not ordered any party to do, refrain from doing, or pay anything, there is nothing arising from the judgment for an order for stay to enforce or restrain. The impugned ruling dismissed and struck out the applicant's application and the entire suit with costs.
Abuse of court process by nondisclosure of parallel stay
The applicant failed to disclose that it had already obtained a stay from the High Court (Njagi, J) on 28th May 2010; the application was condemned as an abuse of process
The respondent's counsel, supported by the affidavit of Ben Muli attaching Njagi J's order, showed the applicant had obtained a High Court stay but did not disclose it. Following Romanus Okeno v Bank of Baroda Kenya Ltd, the court held that engaging both the High Court and the Court of Appeal simultaneously for the same relief is an abuse of process warranting dismissal.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both limbs: an arguable intended appeal and that the appeal will be rendered nugatory if stay or injunction is not granted
- Where the order impugned is a dismissal or striking out of a suit with no positive obligation imposed, there is nothing capable of being stayed
- Concealing from the Court of Appeal a stay already obtained in the High Court while pursuing a rule 5(2)(b) application is an abuse of the court process that must be condemned
Court orders
#- 1.The application by Kenya Hotel Properties Limited dated 8th June 2010 and filed on 9th June 2010 be and is hereby dismissed with costs to the 1st, 2nd, 3rd and 4th respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 35 of 2010
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Injunction restraining the respondent from executing the decree in HCCC No. 367 of 2000
The dispute in that suit had been finalized by the Court of Appeal on 2nd April 2009 and cannot be re-opened
Stay of proceedings in HCCC No. 367 of 2000 and HCCC No. 24 of 2008
The first suit was finalized and the applicant was not a party to the second; further, the impugned order dismissed and struck out a suit, leaving nothing to stay
Order for expeditious typing of proceedings and priority hearing of the appeal
Not a matter within rule 5(2)(b) of the Court's Rules
Consolidation of the applicant's appeal with that of the Kenya Anti-Corruption Commission
Not a matter that can be brought under rule 5(2)(b)
Liberty to file written submissions
Already governed by Rule 100 of the Court's Rules
Costs
Application dismissed with costs to the 1st, 2nd, 3rd and 4th respondents
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.
For an applicant to succeed he must not only show that his appeal or intended appeal is arguable, but also that unless the court grants him an injunction or stay as the case may be, the success of that appeal will be rendered nugatory
There is nothing arising out of the High Court judgment for this court, in an application for a stay, to enforce or to restrain by injunction
This is a practice that must not only be discouraged but condemned.
Accordingly, we order that this application by Kenya Hotel Properties Limited dated 8th June 2010 and filed in this Court on 9th June 2010 be and is hereby dismissed with costs to the 1st, 2nd, 3rd and 4th respondents.
Issues in the judgment
#The judgment inconsistently dates the Muchelule J ruling, stating it was delivered on 2nd May 2010 in the narrative but 27th May 2010 in the caption and conclusion
The judgment refers to KACC's application as Civil Application No 127 of 2000, which appears to be a typographical error for 2010 given the chronology
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (6)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Isaac Anyula Khatete v Republic [2020] KECA 561 (KLR)[2020] KECA 561 (KLR)19 Jun 2020applied
- Catherine Nasimiyu Khisa & another v Jacob Wangila Wanyama & another [2020] KEELC 3824 (KLR)[2020] KEELC 3824 (KLR)23 Jan 2020
- Oliver Collins Wanyama v Engineers Board of Kenya [2019] KECA 993 (KLR)[2019] KECA 993 (KLR)5 Feb 2019
- Godfrey Ajuong Okumu v Engineers Board of Kenya [2019] KECA 985 (KLR)[2019] KECA 985 (KLR)5 Feb 2019applied
- Daniel Lomagul Kandei & 2 others v Kamanga Holdings Limited & 40 others [2017] KECA 551 (KLR)[2017] KECA 551 (KLR)10 May 2017followed
- Walter Enock Nyambati Osebe v Justus Mongumbu Omiti & 2 others [2011] KECA 339 (KLR)[2011] KECA 339 (KLR)8 Mar 2011
Cite this brief
#Cite this brief
Caselaw, "Kenya Hotel Properties Limited v Willesden Investments Ltd [2011] KECA 388 (KLR)", Case Analysis (2011). Civil Application No. NAI 131 of 2010 (UR 97/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/388/eng@2011-01-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.