Joseph Kibe & another v Mae Properties Limited [2016] KECA 323 (KLR)
The bottom line
#Kenya's Court of Appeal paused a High Court document-production order, confirming you don't have to wait for the worst to happen before seeking a stay.
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 application for stay of execution was premature given that no order striking out the defence had yet been made
- 2.Whether the applicants had demonstrated an arguable appeal
- 3.Whether the appeal, if successful, would be rendered nugatory absent a stay
Key legal issues
#Whether the stay application was premature because no order striking out the defence had been made
The application was not premature; the consequences of non-compliance with the discovery order, including a pending application to strike out the defence, were already in motion.
The respondent argued there was no strike-out order yet. The court noted the High Court had ordered production of documents within a specified period with consequences including striking out the defence on default, and that an application to strike out the defence dated 21st July 2015 had already been filed on the ground of non-compliance. Because those consequences were already unfolding, the stay application was properly before the court.
Whether the applicants satisfied the arguability limb
The applicants had an arguable appeal; a single arguable point suffices and it need not be one that will necessarily succeed.
Counsel for the applicants faulted the trial Judge for ordering production of documents the applicants had sworn on affidavit did not exist or were not in their possession, an alleged error in the application of the principles on discovery of documents. Relying on Yellow Horse Inns Limited v A. A. Kawir Transporters Limited, the court held that one arguable point suffices and an arguable point need not necessarily succeed. It found the applicants had an arguable appeal.
Whether the appeal would be rendered nugatory absent a stay
If the defence were struck out, judgment would be entered for the respondent, removing the substratum of the suit and rendering the appeal nugatory.
The respondent had already moved the trial court to strike out the defence for non-compliance with the discovery order. The court agreed with the applicants that the natural consequence of non-compliance would be the striking out of the defence, upon which judgment would be entered for the respondent, leaving nothing of the suit and rendering the already-filed appeal nugatory. Both limbs of the Rule 5(2)(b) test were therefore satisfied and the motion was allowed.
Legal principles established
#- An applicant under Rule 5(2)(b) must first show the appeal (or intended appeal) is arguable, and secondly that it would be rendered nugatory if stay or injunction is not granted; one arguable point suffices and it need not be one that will necessarily succeed.
- In a Rule 5(2)(b) application the Court of Appeal exercises original jurisdiction, applying its mind de novo and not on appeal from the trial judge's discretion.
- A stay application is not premature where the consequences of non-compliance with the impugned order are already taking place.
Court orders
#- 1.Stay of execution of the ruling and order of the High Court made on 18th May, 2015 in HCCC No. 311 of 2004, pending hearing and determination of the appeal
- 2.Costs of the motion to abide the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 311 of 2004
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution/injunction pending appeal)
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 Court will grant a stay or an injunction as the case may be if satisfied firstly, that the applicant has demonstrated that his appeal or intended appeal is arguable; and secondly, that unless a stay or injunction is granted his appeal or intended appeal, if successful, will be rendered nugatory
an applicant need not show a multiplicity of arguable points as one arguable point will suffice. Also, an arguable point is not one which will necessarily succeed.
We do not, in the premises, agree with learned counsel for the respondent that the application before us is premature. It is not. Consequences of failure to comply with the order to be appealed are already taking place.
We allow the motion dated 27 th October, 2015, and hereby stay execution of the ruling and order of the High Court made on 18th May, 2015, pending hearing and determination of appeal.
Issues in the judgment
#Internal inconsistency in the date of the High Court ruling: the memorandum heading and the final orders refer to a ruling dated 18th May 2015, while the body states the ruling was delivered on 15th May 2015.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Kibe & another v Mae Properties Limited [2016] KECA 323 (KLR)", Case Analysis (2016). Civil Application No. Nai. 266 of 2015 (UR 225/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/323/eng@2016-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.