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Court of AppealDismissedRule 5(2)(b) Application in Civil Appeal No. 398 of 2021 (High Court Commercial Suit No. 506 of 2012)

Kenya Bureau of Standards v National Bank of Kenya & 4 others (Civil Application E017 of 2024) [2024] KECA 1181 (KLR)

Court of Appeal
20 September 2024
3,101 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Court of Appeal refused to stay the Ksh. 1.9 billion garnishee orders against KEBS, confirming that money already paid out cannot be clawed back through a stay.

What this practically means

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Executive summary

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The Kenya Bureau of Standards moved the Court of Appeal under Rule 5(2)(b) seeking a stay of a ruling by Mabeya J. delivered on 21st December 2023 in High Court Commercial Suit No. 506 of 2012, by which garnishee orders absolute were issued against it in execution of an arbitral award of approximately Ksh. 1.9 billion in favour of Centurion Engineers & Builders. The applicant argued that the decretal sum was inordinately high, would disrupt its statutory mandate under the Standards Act, would strain public funds not budgeted for the 2023-2024 financial year, and that the trial court had wrongly declined to stay execution pending its application for certification and leave to appeal to the Supreme Court. The 1st respondent countered that the High Court rightly found it had no jurisdiction to stay a judgment of the Court of Appeal, that the garnishee order absolute had already been fully executed with all funds remitted, and that the application was therefore moot and unarguable. The Court agreed that the High Court, being hierarchically lower, has no jurisdiction to stay an order or judgment of the Court of Appeal, and noted that no authority exists for the Court of Appeal staying its own decision; the intended appeal was therefore not arguable. On the nugatory limb, uncontroverted evidence showed execution was complete and the applicant's claim of partial execution was unsubstantiated, rendering the application overtaken by events and moot. The application was dismissed with costs to the 1st respondent.

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 against the ruling of Mabeya J. is arguable
  2. 2.Whether, if stay is not granted, the intended appeal would be rendered nugatory
  3. 3.Whether the application has been overtaken by events and is moot given full execution of the garnishee orders
  4. 4.Whether the High Court has jurisdiction to stay a judgment of the Court of Appeal, and whether the Court of Appeal can stay its own decision

Key legal issues

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01

Test for stay under Rule 5(2)(b)

Holding

The applicant must demonstrate an arguable appeal and that the appeal would be rendered nugatory if stay is not granted; both limbs were not met.

Reasoning

The court restated the settled Rule 5(2)(b) principles: arguability requires at least one bona fide point worthy of decision, and nugatory-ness requires that the appeal be rendered useless or of no effect. The grounds advanced related to the intended Supreme Court appeal and certification rather than the impugned ruling, and the judge could not be faulted for declining jurisdiction he did not have. Execution was also complete.

p. 3
02

Jurisdiction to stay a superior court's decision

Holding

The High Court has no jurisdiction to stay an order or judgment of the Court of Appeal, and the Court of Appeal does not stay its own decisions; counsel could cite no jurisdictional anchor for such a stay.

Reasoning

The court agreed with the trial judge's finding that an application for stay of the Court of Appeal's judgment pending certification had no anchoring provision of law. Hierarchical structure of the courts precludes a lower court from staying a superior court's decision, and no authority was cited for the appellate court staying its own judgment.

p. 5
03

Mootness where execution is complete

Holding

Where the orders sought to be stayed have already been fully executed, the application is overtaken by events and moot; the court will not act in vain or decide academic questions.

Reasoning

Uncontroverted evidence, including a bank statement, showed the garnishee order absolute had been complied with fully and funds remitted to the 1st respondent. The applicant's claim of partial execution was unsubstantiated. Relying on Mativo J. and the Supreme Court in Dande, the court declined to resolve a controversy that no longer exists.

p. 5

Legal principles established

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  • The High Court, being hierarchically lower, has no jurisdiction to stay an order or judgment of the Court of Appeal; nor does the Court of Appeal stay its own decisions.
  • An application for relief under Rule 5(2)(b) fails where the orders sought have already been fully executed, as the court will not make a determination with no practical relevance.

Court orders

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  1. 1.Dismissal of the applicant's notice of motion dated 15th January 2024
  2. 2.Costs of the application to the 1st respondent

The bench

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
High Court of Kenya
Commercial Suit Number 506 of 2012, Centurion Engineers & Builders vs. Kenya Bureau of Standards
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of the Ruling of Mabeya J. made on 21st December 2023, including the orders of garnishee absolute, pending hearing of the application inter-partes and pending the intended appeal

The intended appeal was not arguable and, in any event, execution of the impugned ruling was complete, rendering the application moot

p. 6

Costs

Application dismissed with costs to the 1st respondent.

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.

In the result, as both limbs of the application have not been met, the application fails and we dismiss it with costs to the 1st respondent.
p. 6Final orders - dismissal of the Rule 5(2)(b) application
the High Court hierarchically lower, has no jurisdiction to stay an order or judgment of this Court. We are also not aware of any case where this Court has stayed its own decision.
p. 5Jurisdiction - no power to stay a decision of the Court of Appeal
An appeal or an issue is moot when a decision will not have the efiect of resolving a live controversy afiecting or potentially afiecting the rights of parties.
p. 5Doctrine of mootness as articulated by the Supreme Court in Dande
We, in the circumstances, are of the inclination that execution of the impugned ruling is complete and hence the orders that the applicant seeks have been overtaken by events.
p. 5Overtaken-by-events / full execution of garnishee order absolute

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Bureau of Standards v National Bank of Kenya & 4 others (Civil Application E017 of 2024) [2024] KECA 1181 (KLR)", Case Analysis (2024). Rule 5(2)(b) Application in Civil Appeal No. 398 of 2021 (High Court Commercial Suit No. 506 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1181/eng@2024-09-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.