Attorney General & another v Phoenix Global Kenya Limited & 5 others [2019] KECA 746 (KLR)
The bottom line
#Kenya's Court of Appeal halted the release of rice it suspected was substandard, prioritising consumer safety and the state's appeal over an immediate court order.
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 is arguable
- 2.Whether, if stay is refused, the intended appeal, if successful, will be rendered nugatory
- 3.Whether public interest is a relevant consideration in the grant of stay of proceedings pending appeal
Key legal issues
#Whether the intended appeal is arguable
The Court held the intended appeal was not frivolous, pointing to questions on the unconditional release of rice allegedly not meeting Grade 1 standards, the treatment of broken rice kernels in samples, and the quantum of damages awarded.
The Court stressed it must be cautious not to predetermine matters for the appeal court, but on the draft memorandum of appeal it identified at least three arguable issues: the direction for unconditional release of rice said not to meet Grade 1 standards; the finding that variation in the percentage of broken rice kernels was negligible; and the award of damages. These, it held, merit consideration by the appeal court.
Whether the appeal would be rendered nugatory if stay was refused
The Court held that release of the rice as grade one rice before determination of the appeal would be irreversible and would defeat the object of the intended appeal, since the rice would have been sold to unsuspecting consumers.
Applying the test in Stanley Kangethe Kinyanjui v Tony Ketter on reversibility, the Court found the main bone of contention was the quality and grade of the rice. If released as grade one rice and sold to the public before the appeal was heard, that could not be reversed should the appeal succeed. Weighing this against the 1st respondent's shelf-life and loss concerns, and the 6th respondent's sealing losses, the Court found merit in the application.
Whether the stay should issue subject to conditions proposed by the respondents
The Court declined to attach the conditions suggested by counsel for the 1st respondent to the stay order.
Because the parties' consent of 2nd April 2019, allowing the 1st respondent to apply to downgrade the rice, was expressly made under protest and without prejudice, and because subsequent developments were premised on that consent, the Court held it could not impose the suggested conditions without prejudicing one or other of the parties. It therefore granted stay simpliciter, conditioned only on timely filing of the appeal.
Legal principles established
#- An applicant for stay under Rule 5(2)(b) must demonstrate that the intended appeal is arguable and that, if the order for stay is refused and the appeal succeeds, it will be rendered nugatory; public interest is also a relevant consideration
- The nugatory test asks whether what is sought to be stayed is reversible or, if not reversible, whether damages will reasonably compensate the aggrieved party
- Public interest is a relevant consideration in applications under Rule 5(2)(b)
Court orders
#- 1.Proceedings in Mombasa High Court Petition No. 205 of 2018 stayed pending the hearing and determination of the applicants' intended appeal (prayer 3 of the application)
- 2.The applicants shall file and serve the memorandum and record of appeal within 14 days from the date of delivery of the Ruling, failing which the order for stay shall lapse without further ado
- 3.Once filed, the applicants' appeal shall be fixed for hearing on basis of priority to be heard during the month of June 2019
- 4.The costs of the application shall abide by the outcome of the intended appeal
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. 205 of 2018
- Jurisdiction invoked
- Sections 3 & 3A of the Appellate Jurisdiction Act and Rules 5(2)(b) & 47 of the Court of Appeal Rules
Relief refused
#Imposition of the conditions suggested by counsel for the 1st respondent (downgrading of the rice within 14 days, opening of the 6th respondent's go-downs and unfettered access to the rice) as terms of the stay
The consent allowing downgrade was made under protest and without prejudice, with rights reserved; imposing conditions risked prejudicing the parties
Costs
The costs of the application shall abide by the outcome of the intended 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.
An applicant is required to demonstrate that the intended appeal is arguable and that if the order for stay is refused, the appeal, if successful will be rendered nugatory.
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
The orders that commend themselves and which we hereby make is to allow the applicant’s application in terms of prayer 3 with the result that proceedings in Mombasa High Court Petition No. 205 of 2018 are hereby stayed pending the hearing and determination of the applicants’ intended appeal
on condition that the applicants shall file and serve the memorandum and record of appeal within 14 days from the date of delivery of this Ruling failing which the order for stay of proceedings granted herein shall lapse without further ado.
The costs of the application shall abide by the outcome of the intended appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General & another v Phoenix Global Kenya Limited & 5 others [2019] KECA 746 (KLR)", Case Analysis (2019). Civil Application No. 4 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/746/eng@2019-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.