Kagaari South Farmers Co-operative Society Limited & 4 others v Bernard Mugo & 5 others [2021] KECA 956 (KLR)
The bottom line
#The Court of Appeal dismissed a co-operative society's bid to pause a High Court ruling because the orders had already taken effect, leaving nothing left to preserve.
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 the appeal would be rendered nugatory absent stay or injunction
Key legal issues
#Whether the intended appeal was arguable
The intended appeal was arguable on the jurisdictional ground that the High Court ought not to have assumed jurisdiction over a dispute involving members of a cooperative society, since the Co-operative Societies Act donates such jurisdiction to the Cooperative Tribunal.
The applicants intend to argue that the Judge erred in assuming jurisdiction over a dispute involving members of a cooperative society. The court noted the 1st applicant is a cooperative society and the respondents presumably its members, held that it is arguable whether the High Court was right to assume jurisdiction the Act donates to a tribunal, and, applying the principle that an arguable ground need not succeed, found the appeal arguable.
Whether the intended appeal would be rendered nugatory absent stay
The applicants failed to satisfy the nugatory limb: the impugned orders had already taken effect, and no reversible loss would flow if stay or injunction were denied.
The orders directing the applicants to take delivery of coffee beans within 14 days, with a default clause, had taken effect; the events were more than four years old; and a ruling already delivered cannot be stayed. Having failed the second limb, the Motion had to fail.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both twin principles - that the appeal is arguable and that it would be rendered nugatory absent stay - and failure on either limb is fatal to the application.
- A court hearing a Rule 5(2)(b) application cannot stay a ruling that has already been delivered and taken effect.
Court orders
#- 1.The Motion dated 5th August, 2016 is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Embu
- HCCC No. 4 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules - application for stay of execution and injunction pending appeal
Relief refused
#Injunction restraining the respondents from enforcing the ruling of the High Court dated 25th July, 2016 pending the intended appeal
Applicants failed to satisfy the nugatory-ingredient limb of the Rule 5(2)(b) principles
Stay of proceedings in Embu HCCC No. 4 of 2015 and stay of execution of the ruling
The orders had already taken effect - the applicants were ordered to receive the coffee beans within 14 days of the ruling - so nothing would be rendered nugatory
Costs
The Motion is dismissed with costs to the respondents
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.
As an arguable point on appeal is not one that must necessarily succeed we are satisfied that the intended appeal is arguable.
We cannot stay a ruling that was already delivered.
The applicants have not satisfied the second limb of the principles governing applications of this nature and having failed to do so the Motion fails and is dismissed with costs to the respondents.
Issues in the judgment
#Internal inconsistency in dates: the heading describes the application as arising from a ruling dated 25th July, 2015, but the body of the ruling repeatedly refers to a ruling delivered on 25th July, 2016, and the Notice of Appeal is said to be against both rulings.
The judgment also inconsistently states the ruling was delivered on 1st July, 2015 having been slated for 2nd June, 2015, and separately records the stay application as filed 5th August, 2016 against a ruling said in the heading to be of 2015.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kagaari South Farmers Co-operative Society Limited & 4 others v Bernard Mugo & 5 others [2021] KECA 956 (KLR)", Case Analysis (2021). Civil Application No. 52 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/956/eng@2021-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.