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Court of AppealDismissedCivil Application No. 7 of 2007 (UR 6/2007)· [2007] KECA 94 (KLR)

KENYA AFRICAN NATIONAL UNION v ATTORNEY GENERAL & 4 others [2007] KECA 94 (KLR)

Court of Appeal of Kenya
8 February 2007
ROR.S.C. OmoloPhilip Kiptoo TunoiP.K. TunoiEGE.M. Githinji
849 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed KANU's bid to pause a High Court case, confirming that a potentially winnable appeal alone doesn't justify a stay.

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 Githinji, JJA) delivered on 8th February 2007 in an application under Rule 5(2)(b) of the Court of Appeal Rules by Kenya African National Union (KANU). KANU sought a stay of proceedings in High Court Miscellaneous Application No. 128 of 2003, which was still pending and listed for hearing on 9th February 2007, pending an intended appeal against a ruling of the Constitutional Court (Nyamu, Mohamed Ibrahim and Emukule, JJ) that had refused KANU leave to file a supplementary affidavit and amend its statement of facts. The Court held that the notice of appeal, not the grant of leave, gives the Court jurisdiction over a Rule 5(2)(b) application, invoking Rule 74(4) which dispenses with prior leave before lodging a notice of appeal. The Court assumed arguability but reiterated that an arguable appeal does not mean one bound to succeed and that arguability alone does not entitle a party to a stay; the applicant must additionally show that the appeal's success would be rendered nugatory without the stay. Following the Court's own precedents in Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd and Silverstein v Chesoni, and finding no special distinguishing factors, the Court held costs could remedy any earlier determination of the High Court proceedings, so the appeal would not be rendered nugatory. The motion was dismissed with costs in the intended appeal. The ruling binds lower courts on the two-step Rule 5(2)(b) test.

Key legal issues

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01

Jurisdiction over a Rule 5(2)(b) application where leave to appeal has not been obtained

Holding

The notice of appeal confers jurisdiction on the Court for a Rule 5(2)(b) application; whether leave to appeal has been obtained is irrelevant to the motion.

Reasoning

Rule 74(4) of the Court's Rules provides that where an appeal lies only with leave, it is not necessary to obtain the leave or certificate before lodging the notice of appeal. Accordingly the Court was not called upon to determine whether leave to appeal had been obtained; the notice of appeal filed on 13th November 2006 sufficed to found jurisdiction.

p. 2
02

Test for a stay of proceedings pending appeal under Rule 5(2)(b)

Holding

An applicant must show an arguable appeal and, in addition, that the refusal of the stay would render the success of the intended appeal nugatory. Following established authority (Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd; Silverstein v Chesoni), the applicant failed because costs could remedy the earlier hearing of the High Court proceedings.

Reasoning

The Court reiterated the two-step test: arguability plus the nugatory principle. An arguable appeal need not be one bound to succeed, otherwise stay orders would rarely issue. But the applicant's counsel pointed to no special factors distinguishing the application from the previous decisions. Quoting Chesoni, the Court held that if the appeal succeeded, the High Court proceedings would have been rendered unnecessary but an appropriate order for costs could remedy that, so the appeal would not be rendered nugatory.

p. 2

Legal principles established

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  • It is the notice of appeal, not the grant of leave, that gives the Court jurisdiction to hear a Rule 5(2)(b) application; where an appeal lies only with leave, leave or a certificate need not be obtained before lodging the notice of appeal.
  • An arguable appeal does not mean an appeal bound to succeed, and an arguable appeal alone does not entitle a party to a stay; the applicant must additionally show that the refusal of the stay would render the appeal nugatory.
  • For a stay of proceedings pending appeal, the applicant must show that unless the stay is granted, the success of the intended appeal would be rendered nugatory by the earlier refusal to grant the stay.

Court orders

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  1. 1.The notice of motion dated 16th January 2007 and lodged in the Court on 18th January 2007 was dismissed
  2. 2.Costs of the dismissed motion to be costs in the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 74(4)

Cases cited (2)

  • Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd
    Civil Application No. Nai 50 of 2001 (unreported)
  • Silverstein v Chesoni
    [2002] KLR 867
On appeal from
High Court of Kenya at Nairobi (Constitutional Court)
H.C. Misc. Application No. 128 of 2003
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, "KENYA AFRICAN NATIONAL UNION v ATTORNEY GENERAL & 4 others [2007] KECA 94 (KLR)", Case Analysis (2007). Civil Application No. 7 of 2007 (UR 6/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/94/eng@2007-02-08

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