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Court of AppealDismissedCivil Application No. 52 of 2016

Kagaari South Farmers Co-operative Society Limited & 4 others v Bernard Mugo & 5 others [2021] KECA 956 (KLR)

Court of Appeal of Kenya
19 February 2021
1,174 words in judgment
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The bottom line

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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

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Executive summary

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This is a single-judgment ruling of the Court of Appeal (Ouko, P., Nambuye and Kantai, JJ.A.) dismissing a Motion dated 5th August, 2016 brought by Kagaari South Farmers Co-operative Society Limited and four others under Rule 5(2)(b) of the Court of Appeal Rules. The applicants sought an injunction restraining the respondents from enforcing a High Court ruling (F. Muchemi, J., Embu, HCCC No. 4 of 2015) and a stay of proceedings and execution pending an intended appeal. Their core complaint was that the High Court wrongly assumed jurisdiction over a dispute involving members of a cooperative society, a matter they contended belonged to the Cooperative Tribunal under the Co-operative Societies Act; they also alleged bias, reliance on a stranger's affidavit, and reliance on wrong case law. The court applied the settled twin principles in Stanley Kangethe Kinyanjui v Tony Ketter & Others. It accepted that the jurisdictional point was arguable - a single bona fide arguable ground suffices and an arguable appeal need not succeed. However, the applicants failed the nugatory limb: the impugned orders, directing the applicants to take delivery of coffee beans within 14 days and to furnish minutes of an AGM, had already taken effect, and the court held it cannot stay a ruling already delivered. The application was accordingly dismissed with costs to the respondents. The binding takeaway is that both limbs of the Rule 5(2)(b) test must be satisfied and that orders already executed present nothing capable of being rendered nugatory.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the appeal would be rendered nugatory absent stay or injunction

Key legal issues

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01

Whether the intended appeal was arguable

Holding

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.

Reasoning

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.

p. 2
02

Whether the intended appeal would be rendered nugatory absent stay

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Motion dated 5th August, 2016 is dismissed with costs to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

William Ouko
W. OukoJA
Currently serving
majority

Wrote the judgment

majority
majority
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

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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

p. 2

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

p. 2

Costs

The Motion is dismissed with costs to the respondents

Quotable passages

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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.
p. 2arguability test under Rule 5(2)(b)
We cannot stay a ruling that was already delivered.
p. 2limits of stay jurisdiction
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.
p. 2disposition - failure to satisfy the nugatory limb is fatal

Issues in the judgment

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minor

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.

minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.