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Court of AppealPartially AllowedCivil Application No. 303 of 2006 (UR 170/2006)

Oilcom Kenya Limited v Permanent Secretary Ministry of Roads & Public Works & another [2006] KECA 11 (KLR)

Court of Appeal of Kenya
22 December 2006
EOE.O. O'KubasuJOJ.W. Onyango OtienoWDW.S. Deverell
2,339 words in judgment
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The bottom line

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Kenya's Court of Appeal stopped the demolition of Oilcom's Mlolongo petrol station, holding that destroying property before an appeal is decided can make winning that appeal meaningless.

What this practically means

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Executive summary

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This is a single-judgment ruling of a three-judge bench of the Court of Appeal at Nairobi (O'Kubasu, Onyango Otieno and Deverell, JJA) on a Notice of Motion brought under rules 5(2)(b) and 42 of the Court of Appeal Rules. Oilcom Kenya Limited sought a stay of demolition of its petrol station and structures on LR No. 17645/2, Mlolongo, pending an intended appeal against the ruling of Wendoh, J of 29th November 2006 in High Court Miscellaneous Civil Application No. 701 of 2006. The High Court had granted the applicant leave to apply for judicial review orders of certiorari and prohibition but declined to order that the leave operate as a stay, citing uncertainty over the land boundaries, public interest in road construction, and compensability in damages. Applying the settled twin principles under rule 5(2)(b) - an arguable appeal and nugatory-ness - the Court found arguable points in whether the Judge could order an inter partes hearing at the leave stage when Order LIII requires ex parte application, and in the applicant's title coupled with the Director of Surveys' confirmation that the parcel does not encroach on the Mombasa road reserve. On nugatory-ness, demolition would destroy underground tanks holding 200,000 litres of petrol, leaving nothing to salvage if the appeal succeeded. The Court allowed the motion, granting a stay in terms of prayer 3 of the Notice of Motion dated 4th December 2006, expressly limited to LR No. 17645/2, with costs of the motion in the intended appeal. This binding ruling of the Court of Appeal guides lower courts on stay applications under rule 5(2)(b) and the ex parte nature of leave applications under Order LIII.

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 is arguable
  2. 2.Whether, unless a stay is granted, the intended appeal would be rendered nugatory

Key legal issues

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01

Test for grant of stay pending appeal under rule 5(2)(b)

Holding

The applicant must satisfy the twin principles that the intended appeal is arguable (not frivolous) and that, unless a stay or injunction is granted, the appeal if successful would be rendered nugatory.

Reasoning

The court restated the settled principles from Githunguri v Jimba Credit Corporation, J.K. Industries v Kenya Commercial Bank and Reliance Bank v Norlake Investments. On the facts, the applicant had title to LR 17645/2, the Director of Surveys confirmed the parcel did not encroach on the Mombasa road reserve, and demolition would leave nothing to salvage, rendering any success nugatory.

p. 3
02

Whether the superior court had discretion to order an inter partes hearing at the leave stage under Order LIII

Holding

It is arguable whether the superior court had discretion to order inter partes hearing when the rules provide that the application for leave shall be made ex parte.

Reasoning

Order LIII rule 1(1) and (2) provide that an application for leave to apply for mandamus, prohibition or certiorari shall be made ex parte to a judge in chambers. The learned Judge acknowledged the application is normally heard ex parte but ordered inter partes hearing. The court, exercising caution not to touch matters for the main appeal bench, found this a serious arguable point.

p. 4
03

Whether the applicant's property was subject to the demolition order

Holding

Prima facie the applicant's plot LR 17645/2 does not encroach on the Mombasa road reserve and cannot be the subject of the demolition in the Mlolongo area; what was gazetted for compulsory acquisition was LR No. 1504/7.

Reasoning

The applicant held title to LR 17645/2, which the learned Judge had acknowledged. A letter from the Ag. Director of Surveys dated 1st August 2006 confirmed the parcel does not encroach on the Mombasa road reserve. The court limited its ruling expressly to the applicant's property, LR No. 17645/2.

p. 4

Legal principles established

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  • The jurisdiction under rule 5(2)(b) of the Court of Appeal Rules is original and discretionary, and the applicant must satisfy the twin principles of an arguable appeal and that the appeal would be rendered nugatory absent a stay.
  • Under Order LIII rule 1(1) and (2) of the Civil Procedure Rules, an application for leave to apply for judicial review shall be made ex parte to a judge in chambers.

Court orders

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  1. 1.Stay granted in terms of prayer 3 of the Notice of Motion dated 4th December 2006, namely stay of demolition of the petrol station and all structures on LR No. 17645/2 pending hearing and final determination of the intended appeal
  2. 2.Costs of the motion to be in the intended appeal

The bench

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

EO
majority
JO
majority
WD
majority
On appeal from
High Court of Kenya at Nairobi
High Court Miscellaneous Civil Application No. 701 of 2006
Jurisdiction invoked
Rule 5(2)(b) and Rule 42 of the Court of Appeal Rules

Relief refused

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Certification of the application as urgent and hearing on a priority basis

Not expressly ruled on; the court heard and determined the motion, implying urgency but no separate order recorded

Costs

Costs of the motion to be in the intended appeal.

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.

The jurisdiction exercisable by this Court under rule 5(2)(b) is now settled. It is original and discretionary.
p. 3Nature of rule 5(2)(b) jurisdiction
For the applicant to succeed, it must satisfy the twin guiding principles that the intended appeal is arguable, that is that it is not frivolous and that unless a stay or injunction is granted the appeal or intended appeal, if successful would be rendered nugatory
p. 3Twin principles for stay under rule 5(2)(b)
From the foregoing it is clear that the application for leave has to be made ex parte.
p. 4Order LIII leave applications are ex parte
We therefore grant a stay in terms of prayer 3 of the Notice of Motion dated 4th December, 2006. Costs of the motion to be in the intended appeal.
p. 5Final orders - stay granted and costs

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, "Oilcom Kenya Limited v Permanent Secretary Ministry of Roads & Public Works & another [2006] KECA 11 (KLR)", Case Analysis (2006). Civil Application No. 303 of 2006 (UR 170/2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/11/eng@2006-12-22

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