KENYA SHELL LIMITED vs CHARLES MIGUI MARANGA & ANOTHER [1998] KECA 159 (KLR)
The bottom line
#Winning the 'arguable appeal' test is not enough in Kenya — you must also prove your appeal becomes worthless without a stay, or the court will refuse one.
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 and not frivolous
- 2.Whether the intended appeal, if successful, would be rendered nugatory unless a stay or injunction is granted
Key legal issues
#Arguability of the intended appeal
The intended appeal was arguable, as the question whether the 1995 agreement was imposed on the respondents and the validity of termination under either the 1988 or 1995 agreement were debatable points
The court found the dispute over which agreement (1988 or 1995) governed the petrol station operation raised debatable points. Counsel's submission that both agreements contained termination clauses and that termination was validly effected furnished a further arguable point. Arguability was therefore satisfied, but this alone was insufficient.
Nugatory value of the intended appeal
The applicant failed to establish that the appeal would be rendered nugatory absent a stay; the lease obligations took effect only from 1st May 1999 and no irreparable loss on profit margins was demonstrated
The court noted the lease terms did not take effect until 1st May 1999 and declined to presume the appeal would not be heard by then. The applicant also failed to show, even before the trial judge, that its profit margin was so low that it would suffer irreparable loss if the injunction stood. The nugatory test thus failed and the application was dismissed.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory if the stay or injunction sought is not granted
Court orders
#- 1.The application under Rule 5(2)(b) is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 643 of 1998
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution / injunction pending intended appeal
The applicant failed to demonstrate that the appeal would be rendered nugatory if the stay was not granted
Costs
Costs of the application 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.
an applicant must show to the court two things; (i)that the intended appeal is an arguable one or one which is not frivolous, and (ii)that unless a stay or an injunction or whatever is sought is not granted, the intended appeal, if successful, will be rendered nugatory.
That being our view of the matter, this application must fail and we order that it be and is hereby dismissed with costs thereof to the respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KENYA SHELL LIMITED vs CHARLES MIGUI MARANGA & ANOTHER [1998] KECA 159 (KLR)", Case Analysis (1998). Civil Application No. Nai. 284 of 1998 (108/98). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/159/eng@1998-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.