EAST AFRICAN CABLES LIMITED v PUBLIC PROCUREMENT COMPLAINTS, REVIEW AND APPEALS BOARD & ANOTHER [2007] KECA 249 (KLR)
The bottom line
#Kenya's Court of Appeal refused to halt electricity contracts because a winning bidder's losses could be repaid in money, but the public could not get back lost power supply.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The Court held the intended appeal was clearly arguable after examining the fifteen grounds in the draft memorandum of appeal and the rival submissions.
The draft memorandum of appeal was properly on the record, so the Court could examine its grounds. On a rule 5(2)(b) application grounds need not be argued; the applicant need only identify grounds it believes are arguable. Having carefully considered the grounds and counsel's submissions, the Court concluded the intended appeal was clearly arguable, satisfying the first principle.
Whether the appeal would be rendered nugatory if stay was refused
The Court held the nugatory principle was not satisfied: any losses to the applicant would be quantifiable and assessable in damages if the appeal succeeded, whereas stopping the contracts would harm the public interest.
The Court weighed the applicant's genuine fear of business loss against the 2nd respondent's position as sole electricity distributor facing critical stock shortages, finding delay would harm the greatest number of people. Invoking utilitarian reasoning, it concluded that the applicant's consequent losses were capable of quantification and assessment in damages should its appeal succeed, so refusing stay would not render the appeal nugatory.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the Court that the intended appeal is arguable (not frivolous) and that, if stay or injunction is refused, the appeal would be rendered nugatory.
- On a rule 5(2)(b) application the grounds of the intended appeal are not to be argued; the applicant need only point out the grounds it believes are arguable and the Court decides whether they are arguable.
- In considering the nugatory aspect, each case is considered on its merits and the discretion to grant stay is exercised on the respective merits of the parties' cases.
Court orders
#- 1.The application for stay of execution pending the intended appeal is rejected and dismissed
- 2.Costs of the application to be costs in the intended appeal
- On appeal from
- High Court of Kenya, Nairobi
- H.C. Misc. Appln. No. 372 of 2007
- 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, "EAST AFRICAN CABLES LIMITED v PUBLIC PROCUREMENT COMPLAINTS, REVIEW AND APPEALS BOARD & ANOTHER [2007] KECA 249 (KLR)", Case Analysis (2007). Civil Application No. 109 of 2007 (UR 71/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/249/eng@2007-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.