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Court of AppealDismissedCivil Application No. NAI. 76 of 2003

Sasini Tea & Coffee Ltd v Samuel Obwogi [2003] KECA 94 (KLR)

Court of Appeal of Kenya
11 April 2003
RKR.O. KwachALA.A. LakhaMKM. Ole Keiwua
1,162 words in judgment
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The bottom line

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Kenya's Court of Appeal refused Sasini Tea's request to pause a court judgment, finding the company had no viable appeal and had run out of second chances.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Kwach, Lakha and Keiwua, JJ.A.) dismissed a rule 5(2)(b) application by Sasini Tea & Coffee Ltd for stay of execution pending an intended appeal against the ruling of Wambilyangah J of 18 March 2003, which had dismissed the company's application for review of an earlier order dismissing its appeal for want of prosecution. The underlying suit was a personal injuries claim in which default judgment of Shs.491,500 had been entered, set aside, and the defendant thereafter failed to file a defence in time or to comply with an order to pay the decretal amount into a joint account. The court held that the grounds advanced for review fell within Order XLIV rule 1 of the Civil Procedure Rules and were properly grounds of appeal; since the defendant had not appealed the dismissal for want of prosecution, that avenue was closed. It found no arguable appeal. On jurisdiction, the court laid down the rule that where a leave application under rule 39(b) is pending and a notice of appeal has been lodged under rule 74, rule 5(2)(b) jurisdiction to grant a stay exists notwithstanding the pendency of the leave application, a problem arising only if an appeal is filed before leave is obtained. The application was dismissed with costs to the plaintiff.

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 dismissal of the defendant's application for review was arguable
  2. 2.Whether the Court of Appeal had jurisdiction under rule 5(2)(b) to entertain an application for stay of execution where leave to appeal was still pending in the superior court

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The intended appeal had no merit; the review grounds did not meet Order XLIV rule 1 and were grounds for appeal proper, and the defendant could not attack the dismissal for want of prosecution since it chose not to appeal that order.

Reasoning

The court reviewed the procedural history: the defendant defaulted after default judgment was set aside, its application for stay and extension of time was dismissed by the Chief Magistrate, its appeal was dismissed for want of prosecution, and its review application was dismissed for failure to pay the decretal amount into a joint account. The court found the review grounds were appeal grounds and the defendant had no arguable case.

p. 2
02

Jurisdiction to grant stay where leave to appeal is pending

Holding

Rule 5(2)(b) jurisdiction exists where leave under rule 39(b) has been applied for and a notice of appeal lodged under rule 74, even if leave remains pending; the obstacle only arises if an appeal is filed before leave is obtained.

Reasoning

The court addressed the possibility that the application be treated as one for stay of an order requiring leave to appeal. It held that the combination of a pending leave application and a lodged notice of appeal suffices to found rule 5(2)(b) jurisdiction, provided no appeal is filed before leave is granted.

p. 2

Legal principles established

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  • Once an application for leave to appeal has been made under rule 39(b) and a notice of appeal lodged under rule 74, the Court of Appeal has jurisdiction under rule 5(2)(b) to entertain an application for stay of execution even though the leave application is still pending in the superior court; a problem would only arise if an appeal were filed before leave was obtained.

Court orders

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  1. 1.The application for stay of execution pending appeal is dismissed with costs to the plaintiff

The bench

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

RK
majority
AL
majority
MK
majority
On appeal from
High Court of Kenya at Kisii
H.C.C.C. No. 180 of 2001
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the order of Wambilyangah J of 18 March 2003 and of the decree in Kisii CMCCC No. 1540 of 1995

The intended appeal was not arguable; the grounds for review did not satisfy Order XLIV rule 1 and the defendant had no avenue to challenge the dismissal for want of prosecution

p. 2

Costs

The application is dismissed with costs to the plaintiff.

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.

For the reasons we have given, this application fails and it is dismissed with costs to the plaintiff.
p. 2Final orders - dismissal with costs
this Court has jurisdiction under rule 5(2)(b) of the Rules to entertain an application for stay of execution notwithstanding the fact that at the time the application for stay reaches this Court, the application for leave to appeal is still pending in the superior court
p. 2Jurisdiction under rule 5(2)(b) where leave is pending
The grounds set out in support of the application for review do not in our judgment satisfy the criteria specified under Order XLIV rule 1 of the Civil Procedure Rules. They are clearly grounds for an appeal proper.
p. 2Review versus appeal
This avenue is closed to it because it chose not to appeal against the order of dismissal.
p. 2Consequences of failing to appeal an order

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Sasini Tea & Coffee Ltd v Samuel Obwogi [2003] KECA 94 (KLR)", Case Analysis (2003). Civil Application No. NAI. 76 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/94/eng@2003-04-11

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