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Court of AppealDismissedCivil Application No. NAI. 89 of 2011 (UR.60/2011)

Transjuba International Limited v ZEP-RE (PTA Reinsurance Company) & 2 others [2015] KECA 849 (KLR)

Court of Appeal
20 March 2015
1,837 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to pause a land case, ruling that Transjuba could still participate in the remaining trial and appeal later, so nothing would be lost.

What this practically means

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Executive summary

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This was an application under rule 5(2)(b) of the Court of Appeal Rules by Transjuba International Limited seeking a stay of further proceedings in High Court Civil Case ELC No. 306 of 2008 pending an intended appeal against the ruling of Muchelule, J delivered on 3rd February 2011, in which the High Court struck out the applicant's defence for lack of an arguable defence, the applicant having exhibited no sale agreement or title evidencing ownership of the property in dispute. The applicant argued that the appeal was arguable because the High Court had determined the matter without giving it an opportunity to be heard or call evidence, and that proceedings in formal proof without its defence would deprive it of a fair hearing. The 1st respondent countered that the applicant had been given two opportunities to produce the sale agreement and title documents and had not done so, and that it could be compensated with damages and could still participate in formal proof and appeal any final judgment. Applying the settled twin principles for rule 5(2)(b) applications, the Court found the appeal arguable, since the question whether the applicant was accorded an opportunity to present its case was a real issue for determination. However, on the nugatory limb, the Court held that the dispute was far from finalization: formal proof was yet to be heard, at which stage the applicant could still participate, cross-examine witnesses and make submissions, and any adverse final judgment would be appealable. Relying on David M. Silverstein vs Atsango, the Court concluded the applicant had failed to show the intended appeal would be rendered nugatory and dismissed the Notice of Motion dated 5th April 2011 with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable and not frivolous
  2. 2.Whether, unless a stay of proceedings is granted, the intended appeal, if successful, would be rendered nugatory

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The appeal was arguable because there was a question for determination as to whether the applicant was accorded an opportunity to present its case

Reasoning

The Court reiterated that at the rule 5(2)(b) stage it determines only whether there is an arguable appeal, not whether the appeal will succeed, which is for another bench. The applicant's complaint that the High Court struck out its defence without according it an opportunity to be heard raised at least one issue for determination, which sufficed for arguability.

p. 3
02

Whether the intended appeal would be rendered nugatory if the stay of proceedings were declined

Holding

The appeal would not be rendered nugatory because formal proof remained, at which the applicant could participate, cross-examine witnesses and make submissions, and any adverse final judgment would itself be appealable

Reasoning

The dispute was far from finalization: formal proof was yet to be heard. Adopting Emukule J's exposition of formal proof, the Court found the applicant still had opportunities to participate in the trial and to appeal any final decision, so nothing irreversible would occur if the stay were refused.

p. 3

Legal principles established

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  • The jurisdiction under rule 5(2)(b) of the Court of Appeal Rules is discretionary and requires an applicant to satisfy the twin principles that the intended appeal is arguable and that, unless a stay or injunction is granted, the appeal would be rendered nugatory
  • An applicant under rule 5(2)(b) need not show that the appeal is likely to succeed; it is enough to show at least one issue upon which the Court should pronounce its decision

Court orders

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  1. 1.The Notice of Motion dated 5th April 2011 be dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.ELC. No. 306 of 2008
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of further proceedings in High Court Civil Case ELC Number 306 of 2008 pending the hearing and determination of the intended appeal

Although the appeal was found to be arguable, the applicant failed to demonstrate that the appeal would be rendered nugatory if the stay were denied, since formal proof proceedings remain in which the applicant may participate and, if unsuccessful, appeal again

p. 3

Costs

The Notice of Motion dated 5th April 2011 dismissed with costs (costs of the application to the respondents)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is discretionary, and for the applicant to succeed, it must satisfy the twin guiding principles, firstly that, the intended appeal is arguable, in that it is not frivolous, and secondly that unless a stay or injunction is granted, the appeal or the intended appeal, if successful, would be rendered nugatory
p. 3Rule 5(2)(b) twin principles
what we are required to determine at this stage is whether or not there is an arguable appeal, and not whether or not the appeal will be successful, as this will be canvassed before another bench
p. 3Standard for arguability at rule 5(2)(b) stage
we order that the Notice of Motion dated 5th April 2011 be dismissed with costs. It is so ordered.
p. 4Final orders - dismissal of the application

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Transjuba International Limited v ZEP-RE (PTA Reinsurance Company) & 2 others [2015] KECA 849 (KLR)", Case Analysis (2015). Civil Application No. NAI. 89 of 2011 (UR.60/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/849/eng@2015-03-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.