County Council of Narok & another v Kalyasoi Farmers Co-perative Society Ltd & 6 others [2005] KECA 31 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause High Court proceedings, confirming that the party seeking a stay must prove their appeal would otherwise become worthless.
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 applicants' intended appeal would be rendered nugatory if a stay of the High Court proceedings were not granted
- 2.Whether, in all the circumstances, including the earlier refused application for similar orders, the court should exercise its discretion under rule 5(2)(b) to stay the ruling and orders of the High Court
Key legal issues
#Whether the intended appeal would be rendered nugatory if a stay of the High Court proceedings were refused
It would not. The relevant appeal is the one already filed in the Court of Appeal; if it succeeded, the High Court proceedings would have been rendered unnecessary but an order for costs could remedy that, so the appeal would not be worthless.
Following Silverstein v Chesoni and Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd, the court held that the nugatory test applies to the appeal already filed in the Court of Appeal, not the appeal pending in the High Court. The applicant bears the onus on this second limb. If the appeal succeeded, the High Court proceedings would be determined in accordance with it; any unnecessary hearing in the superior court could be remedied by an appropriate costs order, so the appeal would not have been worthless.
Whether the court should exercise its discretion to stay proceedings given the contempt-related genesis of the matter and the earlier refused application
The court declined to grant a stay, noting the applicant had rushed to court fearing committal for contempt when no committal order had been made, and that the proper course was to return to the learned Judge to explain or purge the contempt.
The court recalled its earlier ruling of 14th October 2005 refusing a similar application by Narok County Council, in which it observed that the applicant had moved to the Court of Appeal apprehending committal although no committal order had issued. The application below was intended to give the applicant a right to be heard on the failure to comply with a court order, engaging the dignity and authority of the court. Taking the genesis of the matter into account, the court concluded the applications should be dismissed.
Legal principles established
#- On an application for stay of proceedings pending appeal, the appeal whose success would be rendered nugatory is the appeal already filed in the Court of Appeal, not the appeal pending in the High Court.
- The burden of showing that the intended appeal would be rendered nugatory without a stay lies on the applicant, and each case depends on its own facts; where the appeal may be heard and, if successful, determine the superior court proceedings, the appeal is not nugatory even if the High Court hearing proves unnecessary.
- The refusal of a stay of proceedings in a particular case lays down no general principle that no stay of proceedings will ever be granted under rule 5(2)(b); the discretion remains and each case turns on its own facts.
- Court orders must be obeyed even if they are to be challenged thereafter; a party appearing to disobey a court order should return to the judge who made the order to explain the disobedience or purge the contempt.
Court orders
#- 1.The two applications (Civil Application Nos. NAI. 324 and 325 of 2005) be and are hereby 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. 664 of 2005
- Jurisdiction invoked
- rule 5(2)(b) of the Court of Appeal Rules
- Consolidated with
- Civil Application No. NAI. 324 of 2005, Civil Application No. NAI. 325 of 2005
Relief refused
#Stay of the ruling and orders of the High Court (Ojwang, J.) delivered on 2nd December 2005 and stay of the High Court proceedings
The intended appeal would not be rendered nugatory if a stay were refused, as any successful appeal would render the High Court proceedings unnecessary and an order of costs could remedy any unnecessary hearing; also, the applicants should have returned to the superior court to explain or purge the contempt, and an earlier similar application had already been refused
Costs
The two applications were dismissed with costs 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.
the appeal whose success would be rendered nugatory if we do not grant a stay is the appeal already filed in this Court, not the appeal pending in the High Court
The onus of satisfying us on the second condition, that unless stay is granted, the intended appeal would be rendered nugatory, is also upon the applicant
The Court is not laying down any principle that no order for stay of proceedings will ever be made; that would be contrary to the provisions of rule 5(2)(b) of the Court's own rules
It is trite law that court orders must be obeyed even if they are to be challenged thereafter.
We accordingly order that the two applications be and are hereby dismissed with costs to the respondents
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Council of Narok & another v Kalyasoi Farmers Co-perative Society Ltd & 6 others [2005] KECA 31 (KLR)", Case Analysis (2005). Civil Application Nos. NAI. 324 & 325 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/31/eng@2005-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.