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Court of AppealDismissedCivil Application NAI 99 of 2005 (33/2005 UR)· [2005] KECA 320 (KLR)

Johnson Wax (EA) Limited v John Mbari Mburu & 2 others [2005] KECA 320 (KLR)

Court of Appeal
7 October 2005
ROR.S.C. OmoloPhilip Kiptoo TunoiP.K. TunoiEOE.O. O'Kubasu
1,696 words in judgment
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The bottom line

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The Court of Appeal refused to pause the High Court case, holding trial inconvenience can be fixed later by costs.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi (Omolo, Tunoi and O'Kubasu, JJ.A.) delivered on 7 October 2005 on a notice of motion under Rule 5(2)(b) of the Court of Appeal Rules. The applicant, Johnsons Wax (E.A.) Limited, sought a stay of further proceedings in High Court Civil Case No. 2328 of 1999 pending the hearing of Civil Appeal No. 224 of 2004, in which it challenges an order of Kuloba, J. of 16 July 2003 striking out its Chamber Summons seeking to strike out paragraphs of the plaint. The applicant argued that proceeding to trial without the particulars sought would prejudice it and render the appeal nugatory. The court restated the settled twin principles: the applicant must show an arguable appeal and that the appeal would be rendered nugatory without the stay. It found it unnecessary to decide arguability definitively, holding that even assuming an arguable appeal, the nugatory limb failed. Relying on Malde Transporters and quoting extensively from Silverstein v Chesoni and Kenya Commercial Bank v Benjoh Amalgamated, the court held that the appeal whose success matters is the one already filed in the Court of Appeal, that the inconvenience and expense of trial are remediable by costs, and that each case depends on its own facts, with no absolute bar on stays of proceedings. The application was dismissed with costs. The decision below was not disturbed; the ruling binds lower courts on the nugatory-appeal test for stays of proceedings.

Key legal issues

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Whether the intended appeal would be rendered nugatory if further proceedings in the High Court were not stayed

Holding

No. Even if the applicant succeeds in its intended appeal against the order refusing to strike out paragraphs of the plaint, the completed trial proceedings would be unnecessary but remediable by costs, so the appeal would not be worthless.

Reasoning

The court applied the settled Rule 5(2)(b) twin tests. On the nugatory limb it adopted Silverstein v Chesoni and Kenya Commercial Bank v Benjoh Amalgamated, holding that the relevant appeal is the one already filed, and that the risk that trial proceedings may become unnecessary is cured by an order for costs. It also noted the unexplained delay of 1½ years in seeking a stay, echoing Kubo, J's ruling, and endorsed Malde Transporters on the ordinary inconvenience of litigation. The court expressly declined to lay down an absolute bar against stays of proceedings.

p. 3

Legal principles established

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  • To obtain a stay of proceedings under Rule 5(2)(b), the applicant must satisfy the court both that the appeal is arguable and that it would be rendered nugatory if the stay is not granted.
  • The appeal whose success must be shown to be rendered nugatory is the appeal already filed in the Court of Appeal, not any appeal pending in the High Court.
  • The inconvenience and expense of proceeding to trial do not by themselves render an intended appeal nugatory; the remedy lies in costs if the appeal later succeeds.
  • Each stay application depends on its own facts and no absolute rule bars stay of proceedings.

Court orders

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  1. 1.Application for stay of further proceedings in High Court Civil Case Number 2328 of 1999 dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure RulesOrder VI Rules 8 and 13

Cases cited (5)

  • BUTT V. RENT RESTRICTION TRIBUNAL
    [1982] KLR 417
  • J.K. INDUSTRIES V. KENYA COMMERCIAL BANK LTD & ANOTHER
    [1987] KLR 506
  • MALDE TRANSPORTERS LIMITED VS. BASHIR ARAB MOHAMED AND FATUMA HAJI HASSAN (SUING AS THE ADMINISTRATOR OF THE ESTATE OF ARAB MOHAMED AHMED AND JOHN NGANDU KINUTHIA – Civil Application No. NAI. 155 of 2005
  • SILVERSTEIN V. CHESONI
    [2002] 1 KLR 867
  • Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd & Another Civil Application No. NAI.50 of 2001 (29/2001 UR)
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2328 of 1999
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Johnson Wax (EA) Limited v John Mbari Mburu & 2 others [2005] KECA 320 (KLR)", Case Analysis (2005). Civil Application NAI 99 of 2005 (33/2005 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2005/320/eng@2005-10-07

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