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Court of AppealAllowedCivil Appli. Nai No. 262 of 2008 (UR. 167/09)

Karume Investments Limited v Kenya Shell Limited & another [2008] KECA 42 (KLR)

Court of Appeal of Kenya
19 December 2008
3,557 words in judgment
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The bottom line

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Kenya's Court of Appeal froze execution of a High Court land ruling because even one arguable appeal point is enough to justify a stay.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi on a Notice of Motion by Karume Investments Limited under rule 5(2)(b) of the Court of Appeal Rules seeking stay of execution of a High Court judgment (Wendoh, J., 30 July 2008) in judicial review proceedings. In those proceedings Kenya Shell Limited had successfully obtained certiorari quashing the Commissioner of Lands' decision to allot L.R. No. 209/6240 to Karume Investments, and mandamus compelling restoration of the lease to Kenya Shell in respect of both plots. The applicant had filed a Notice of Appeal and an intended appeal (Civil Appeal No. 201 of 2008). The Court restated the settled twin principles for rule 5(2)(b) applications: the applicant must demonstrate an arguable appeal and that refusal of stay would render a successful appeal nugatory. It stressed its limited jurisdiction at that stage, declining to make firm findings on the merits. The Court found it arguable whether the superior court had the power to issue the orders of certiorari and mandamus, and noted that even one arguable point suffices. On the nugatory limb, the property was valued at over KShs 55 million and could be sold to third parties, complicating matters if the appeal succeeded. Special circumstances, including tenants in occupation of the premises, reinforced the conclusion. The application was allowed: execution of the High Court order was stayed pending the hearing and determination of the intended appeal, and the Court's earlier order of 2 October 2008 staying issuance of the extended grant was reiterated. Costs of the application were ordered to abide the outcome of the intended appeal.

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 (not frivolous)
  2. 2.Whether refusal to grant a stay would render the intended appeal nugatory if it succeeded

Key legal issues

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01

Twin principles governing stay pending appeal under rule 5(2)(b)

Holding

The applicant must show an arguable appeal and that the appeal would be rendered nugatory if stay is refused; the Court's jurisdiction on such an application is limited and does not extend to the merits.

Reasoning

The Court restated the settled principles from Githunguri v Jimba and Butt v Rent Restriction Tribunal. It emphasized that its jurisdiction is restricted to the two tests and it must avoid firm findings on issues for the intended appeal. One arguable point, coupled with special circumstances such as tenants in occupation, suffices.

p. 5
02

Arguability of the intended appeal

Holding

It is arguable whether the superior court had power to issue the orders of certiorari and mandamus, and the appeal raises substantial issues worth investigating.

Reasoning

The Court accepted Mr Ombwayo's submission that it was arguable whether the superior court had power to issue certiorari and mandamus in the circumstances. Taking the history of the dispute into account, the intended appeal could not be said to be frivolous; the possibility of sale to third parties also supported the nugatory limb.

p. 5

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy the twin tests: an arguable appeal, and that the appeal would be rendered nugatory if stay is refused.
  • A single arguable point suffices on a rule 5(2)(b) application.

Court orders

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  1. 1.Stay of execution of the ruling/order of the High Court (Wendoh, J.) dated 30th July 2008 granted pending the hearing and determination of the intended appeal
  2. 2.Reiteration of the Court's order of 2nd October 2008 that issuance of the extended Grant for L.R. No. 209/6240 pursuant to the ruling of Wendoh J. dated 30th July 2008 is stayed until the hearing and final determination of the intended appeal
  3. 3.Costs of the application to abide the outcome of the intended appeal

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Civil Application No. 1534 of 2005
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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.

For avoidance of doubt, we reiterate this Court's order made on 2nd October, 2008 to the effect that the issuance of the extended Grant for L.R. NO. 209/6240 pursuant to the ruling of Wendoh J. dated 30th July, 2008 is stayed until the hearing and final determination of the intended appeal.
p. 6Final orders - stay granted
There may or may not be other arguable points but as we have said before even one arguable point is sufficient for the purposes of rule 5(2); there need not be a chain of arguable points to sustain an application.
p. 6Single arguable point suffices
The general principles on which the court would base its unfettered discretion were first that the appeal should not be frivolous or the applicant must show that he has an arguable appeal and, secondly, that the court should ensure that the appeal, if successful, should not be rendered nugatory.
p. 5Rule 5(2)(b) principles (quoting Githunguri v Jimba)

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, "Karume Investments Limited v Kenya Shell Limited & another [2008] KECA 42 (KLR)", Case Analysis (2008). Civil Appli. Nai No. 262 of 2008 (UR. 167/09). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/42/eng@2008-12-19

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