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Court of AppealDismissedCivil Application No. Nai. 284 of 1999

DAVID KIBERIA & QUINSTAR (K) LIMITED vs MERU CENTRAL FARMERS CO-OPERATIVE UNION LIMITED & NATIONAL BANK OF KENYA [2000] KECA 337 (KLR)

Court of Appeal
11 February 2000
473 words in judgment
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The bottom line

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The Court of Appeal refused to pause enforcement of a KShs 455,560 judgment because the losing party had never actually filed an appeal.

What this practically means

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Executive summary

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The unsuccessful defendants in Meru HCCC No. 328 of 1994 applied to the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules for a stay of execution of a ruling and order of the High Court at Meru (Omwitsa, Commissioner of Assize) dated 11 August 1999, of the decree therein, and for a stay of proceedings in the suit, pending appeal. The background was that on 16 June 1998 the High Court had entered summary judgment against the applicants for K.Shs.455,560 plus costs and interest on the first respondent's application. A notice of appeal was filed but no substantive appeal followed. The applicants then applied in the High Court to set aside the judgment or, alternatively, for a stay; that application was dismissed on 11 August 1999, precipitating the present application. The Court of Appeal (Gicheru, Lakha and O'Kubasu, JJ.A) dismissed the application with costs. It held that no appeal had been preferred against the summary judgment and that no such appeal would in any event be arguable; and that the ruling of 11 August 1999 was not appealable without leave, no leave having been obtained, so there was no appeal and consequently no stay could pend it. The court was also unpersuaded that any appeal against the ruling was arguable. The decision binds subordinate courts and the High Court on the principle that a stay under rule 5(2)(b) presupposes a competent appeal or an arguable one.

Questions the Court framed

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

  1. 1.Whether a stay of execution of the High Court ruling and order of 11 August 1999 and of the decree should be granted pending appeal
  2. 2.Whether a stay of proceedings in Meru HCCC No. 328 of 1994 should be granted pending appeal
  3. 3.Whether the applicants demonstrated an arguable appeal and whether there is a competent appeal pending to found a stay

Key legal issues

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01

Whether a stay can issue where no appeal is pending against the judgment sought to be stayed

Holding

The court refused the stay because no appeal had been preferred against the summary judgment of 16 June 1998 and none appeared arguable

Reasoning

The applicants had filed only a notice of appeal against the summary judgment; no substantive appeal had been filed, and the record lacked even a certified copy of the judgment. The court held it was not persuaded any such appeal would be arguable, and noted no application for stay had been made in respect of that judgment, so there was no competent foundation for a stay.

p. 2
02

Whether a stay can issue pending an appeal against a ruling that is not appealable without leave

Holding

The ruling of 11 August 1999 was not appealable without leave; no leave having been obtained, there was no appeal and hence no stay could be granted

Reasoning

The court reasoned that the right to a stay pending appeal is derivative of a right of appeal. Where a ruling is appealable only with leave and no leave has been sought or obtained, there is no appeal in existence or contemplation, and the jurisdiction under rule 5(2)(b) cannot be invoked. The court was also unpersuaded that any appeal against the ruling would be arguable.

p. 2

Legal principles established

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  • A stay of execution pending appeal under rule 5(2)(b) cannot be granted where no appeal has been preferred or where there is no right of appeal without leave and no leave has been obtained
  • An applicant for stay under rule 5(2)(b) must demonstrate an arguable appeal; the court will refuse a stay where it is not persuaded the appeal is arguable

Court orders

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  1. 1.The application for stay of execution and stay of proceedings is dismissed
  2. 2.Costs of the application awarded to the respondents

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Meru
H.C.C.C. No. 328 of 1994
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the ruling and order of the High Court dated 11 August 1999 and of the decree pending appeal

No appeal had been preferred against the summary judgment; the ruling of 11 August 1999 was not appealable without leave, and no leave was obtained; no arguable appeal was demonstrated

p. 2

Stay of proceedings in Meru HCCC No. 328 of 1994 pending appeal

The application failed for want of an arguable appeal and a competent appeal pending

p. 2

Costs

The application was dismissed with costs (costs awarded 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.

there is no right of appeal and there can be no stay pending an appeal if there can be no appeal
p. 2Stay pending appeal requires an existing right of appeal
In the first place, no appeal has been preferred against the judgment entered on 16 June, 1998. We are not persuaded that such an appeal would, in any event, be arguable.
p. 2Arguability and competence of appeal as prerequisites to stay
For the reasons above stated, this application fails and is dismissed with costs.
p. 2Final orders - dismissal of the application

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, "DAVID KIBERIA & QUINSTAR (K) LIMITED vs MERU CENTRAL FARMERS CO-OPERATIVE UNION LIMITED & NATIONAL BANK OF KENYA [2000] KECA 337 (KLR)", Case Analysis (2000). Civil Application No. Nai. 284 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/337/eng@2000-02-11

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