The Owners of the Motor Vessel ‘Dolphin Star’ v E.T. Timbers Pte Limited (Civil Application E063 of 2021) [2021] KECA 303 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause admiralty proceedings against the Dolphin Star because money damages could compensate the shipowner if it won on appeal.
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 Court has jurisdiction to entertain an application for stay of proceedings arising from a High Court ruling exercising admiralty jurisdiction
- 2.Whether the Applicant's appeal is arguable
- 3.Whether the appeal will be rendered nugatory if the stay of High Court proceedings is not granted
Key legal issues
#Whether the appeal is arguable
The appeal is arguable on the grounds that leave to amend may have clothed the High Court with jurisdiction post facto, and that the security orders may have been made suo motu without hearing the parties
The Court found that it was arguable whether the leave to amend the Respondent's pleadings clothed the High Court with jurisdiction to entertain the case after the fact, and whether the orders made against the Applicant were sought in the initial pleadings or made suo motu without a hearing. These are bona fide arguable points sufficient under the Kinyanjui v Ketter principles, without making definitive findings.
Whether the appeal will be rendered nugatory if stay is not granted
The appeal will not be rendered nugatory because the Applicant, if successful, would be entitled to damages sufficient to compensate it
Applying the test of reversibility or adequacy of damages, the Court was satisfied that what is sought to be stayed (the continuation of High Court proceedings, default judgment applications, cargo discharge and possible sale) would not render the appeal nugatory since the Applicant would be compensable in damages if the appeal succeeded. The twin principles must both be satisfied; failing the nugatory limb, the application fails.
The applicable principles for stay of proceedings under Kenyan and English law
The Kenyan position on stay of proceedings is not dissimilar to the English one; Rule 5(2)(b) jurisdiction is original, independent and discretionary and arises only where a notice of appeal has been lodged
The Court endorsed the English factors from Kings College Hospital v Thomas and NB v Haringey LBC (a stay is the exception; cogent evidence of the appeal being stifled; balance of harm; prospects considered only where strongly shown) and the Kenyan crystallization in Stanley Kangethe Kinyanjui v Tonny Ketter, finding the two jurisdictions' approaches substantially aligned.
Legal principles established
#- The Court of Appeal has jurisdiction to entertain an application for stay of proceedings arising from a ruling or order of the High Court exercising admiralty jurisdiction
- An applicant under Rule 5(2)(b) must satisfy both twin principles - an arguable appeal and that the appeal will be rendered nugatory without the stay; where damages can adequately compensate the applicant, the nugatory test is not met
Court orders
#- 1.The Notice of Motion application dated 10th September 2021 is dismissed
- 2.Costs of the application are awarded to the Respondent
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 (Admiralty)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules 2010, Section 3A and 3B of the Appellate Jurisdiction Act (Cap 9), and the inherent jurisdiction of the Court; with reference to Section 49(3) of the Senior Courts Act 1981 (England) and Sections 4(2) and (3) of the Judicature Act (Cap 8)
Relief refused
#Stay of the High Court proceedings pending the hearing and determination of the appeal from the Ruling of 14th July 2021
The appeal was found arguable, but the Applicant failed to establish that the appeal would be rendered nugatory, since damages would compensate it if it succeeded on appeal
Costs
Dismissed with costs to the Respondent: 'the Notice of Motion application dated 10th September 2021 is dismissed with costs to the Respondent.'
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.
There is no doubt that this court has jurisdiction to entertain an application for stay of proceedings arising from a ruling or order of the High Court exercising admiralty jurisdiction.
It is arguable whether the leave to amend clothed the High Court with jurisdiction to entertain the case, post facto.
The burden lies with the Applicant to show that its appeal will be rendered nugatory. The test to apply is to consider 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.
We are satisfied that this application has no merit. Accordingly, the Notice of Motion application dated 10th September 2021 is dismissed with costs to the Respondent.
Issues in the judgment
#The Applicant's counsel's citation of the English case appears with two different spellings in the judgment - 'Richbold Norway ASA' and 'Reichhold Norway ASA' - in the submissions and in the Court's own quotation respectively
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Owners of the Motor Vessel ‘Dolphin Star’ v E.T. Timbers Pte Limited (Civil Application E063 of 2021) [2021] KECA 303 (KLR)", Case Analysis (2021). Notice of Motion dated 10th September 2021 (Court of Appeal, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/303/eng@2021-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.