Narok County Council v Kalysoi Farmers Co-operative Society & 6 others [2005] KECA 196 (KLR)

The ruling gives no extended reasons; the court expressly reserved them for a later date. It recorded only its view that the intended appeal was arguable. The context shows the intended appeal concerned questions going to the jurisdiction of the trial court, which the court anticipated would be argued when the learned Judge dealt with the pending contempt application. Because the reasons were reserved, the particular arguable points cannot be identified from this document beyond that jurisdictional context.

The court accepted arguability but found the second limb of the twin test unsatisfied: the intended appeal would not be rendered nugatory if the application was refused. That finding was decisive, since both limbs must be satisfied for a stay to issue. The court's observation that the parties could raise all the issues relating to jurisdiction during the hearing of the contempt application indicates why refusal was thought harmless. No further reasons were given, the court having reserved them.

The applicant sought a stay of the whole of the proceedings in the Nairobi High Court case and of the orders made on 14th June 2005, which were to be placed before Ojwang J at 3.00 p.m. on the hearing day. Having heard counsel, the court applied the twin test and concluded the nugatory limb failed. It pointed out that it would be quite appropriate for the learned Judge to hear the arguments on jurisdiction while dealing with the contempt application, and dismissed the application with costs, reserving its reasons.