Malde Transporters Limited v Bashir Arab Mohammed & 3 others [2005] KECA 181 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a negligence trial, holding that the ordinary cost and inconvenience of litigation do not justify a stay.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable so as to satisfy the first limb of the Rule 5(2)(b) test
The Court was satisfied the intended appeal was arguable and not frivolous, but this alone did not entitle the applicant to a stay.
The Court considered the submissions of counsel and perused the draft Memorandum of Appeal. It concluded that the grounds raised by the applicant - that the judge's orders lacked basis in law, breached natural justice and gave relief not prayed for - were sufficient to establish that the appeal was certainly arguable, satisfying the first limb of the established Rule 5(2)(b) test.
Whether the success of the intended appeal would be rendered nugatory if the stay of proceedings was not granted
The Court held that the general inconvenience, expense and rigours of being a litigant do not amount to nugatory consequences; if the applicant ultimately succeeded on appeal, the judge's orders would be quashed and the applicant compensated in costs.
The Court accepted that litigation is expensive and inconvenient to every litigant, but held that no one enjoys litigation and that the aftermath of vexatious and frivolous litigation is normally taken care of by costs. It reasoned that if the learned Judge were eventually found wrong on appeal, his orders would be quashed and the applicant compensated in costs, so the second limb of the Rule 5(2)(b) test was not satisfied and the application had to fail.
Legal principles established
#- Under Rule 5(2)(b), the Court of Appeal considers, inter alia, whether the appeal or intended appeal is arguable and whether it would be rendered nugatory if the order sought is not granted.
- The inconvenience, expense and rigours of litigation do not by themselves render the success of an intended appeal nugatory; such hardship can be compensated by costs.
Court orders
#- 1.The application for stay of proceedings pending the hearing and determination of the intended appeal is dismissed
- 2.Costs of the application awarded to the 1st respondent
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 365 of 1999
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malde Transporters Limited v Bashir Arab Mohammed & 3 others [2005] KECA 181 (KLR)", Case Analysis (2005). Civil Appli NAI 155 of 2005 (94/2005 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/181/eng@2005-07-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.