Patrick Mukiri Kabundu v The Executive, Tourism Development & Culture, Mombasa County & 2 others
The bottom line
#The Court of Appeal refused to pause Mombasa's liquor licensing law, confirming that a dismissed petition is a 'negative order' that cannot be stayed.
What this practically means
#Executive summary
#Key legal issues
#Scope of reliefs available under rule 5(2)(b)
Rule 5(2)(b) is confined to stay of execution, stay of proceedings and injunction; other reliefs require a different jurisdiction.
The applicant sought four reliefs, including staying an Act, reinstating an interim order and staying all county prosecutions. The Court held it could only properly grant a stay of execution of the High Court judgment under rule 5(2)(b); any other relief would require invoking a different jurisdiction of the Court.
Whether a negative order can be stayed
A negative order - such as a mere dismissal of a petition - is not capable of execution and cannot be stayed under rule 5(2)(b).
Relying on Exclusive Estates Ltd and other decisions, the Court reiterated that stay under rule 5(2)(b) contemplates a decree or order capable of execution under section 38 of the Civil Procedure Act. The dismissal of the petition by Emukule, J. was a negative order requiring nothing of the applicant, so no stay lay.
Arguability of the intended appeal
The intended appeal was arguable; the grounds on public participation, prosecutorial powers of the county government, and retrospectivity were not frivolous.
The Court was satisfied prima facie that the grounds raised - absence of public participation under Article 10, violation of Article 157 on prosecution powers, and the alleged retrospective commencement of the Act - were bona fide and arguable, though arguability alone does not entitle an applicant to stay; both limbs must be satisfied.
Whether the appeal would be rendered nugatory
The nugatory-ness limb failed: the balance of hardship favoured the respondents given the operation of the devolved county government and the availability of damages.
The Court weighed the respective hardship. Any fine or conviction could potentially be compensated, and the Act had been in force and observed for some time. The importance of the devolved system meant its working should not be unduly obstructed where damages could compensate the applicant.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both limbs - arguability and nugatory-ness - and satisfying only one is insufficient
- The Court of Appeal will not stay a negative order which does not require the applicant to do or abstain from doing anything
- Jurisdiction under rule 5(2)(b) is original and discretionary; its exercise is not an appeal from, nor dependent on, any order made by the High Court
- Only one bona fide arguable ground is required to demonstrate an arguable appeal; the applicant need not establish a multiplicity of grounds
- In rule 5(2)(b) applications the Court must consider the respective hardship and inconvenience each party stands to suffer, and the working of devolved government should not be unduly obstructed where a party may be adequately compensated by damages
Court orders
#- 1.The application dated 26th October 2015 is dismissed
- 2.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- High Court of Kenya at Mombasa
- Misc. App. No. 27 of 2015 (consolidated with Petition No. 18 of 2015)
- Jurisdiction invoked
- Rules 5(2)(b) and 42(1) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Mukiri Kabundu v The Executive, Tourism Development & Culture, Mombasa County & 2 others", Case Analysis (2016). Civil Application No. 59 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/632/eng@2016-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.