Kagaari South Farmers Co-operative Society Limited & 4 Others v Bernard Mugo & 5 Others
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
#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
- 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
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", 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.