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Court of AppealDismissedCivil Application No. 255 of 2007· [2008] KECA 252 (KLR)

Dakane Abdullahi Ali v Kenya Anti Corruption Commission & 2 others [2008] KECA 252 (KLR)

Court of Appeal of Kenya
8 February 2008
SBS.E.O. BosireEGE.M. GithinjiJOJ.W. Onyango Otieno
2,118 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed Dakane's application for a stay of proceedings because the preservation order he was challenging had already expired, leaving nothing to 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 rule 5(2)(b) application by Dakane Abdullahi Ali seeking a stay of proceedings in High Court Miscellaneous Civil Application No. 186 of 2007 (Visram, J.) pending an intended appeal. The underlying proceedings were brought by the Kenya Anti-Corruption Commission under section 56 of the Anti-Corruption and Economic Crimes Act for an ex parte preservation order over land in Nairobi alleged to have been corruptly allotted by the former Commissioner of Lands, Judith Marilyn Okungu, to Northern Construction Co. Ltd. Visram, J. dismissed the applicant's motion to strike out the proceedings, holding inter alia that section 56 creates an independent procedure allowing the Commission to obtain ex parte injunctive orders without filing a substantive suit. The Court of Appeal applied the settled two-pronged test for rule 5(2)(b): an arguable appeal and the nugatory principle. It found one arguable point - whether a preservation order under section 56 may be obtained without pending recovery proceedings, since otherwise an order could remain in force indefinitely through repeated extensions. However, on the nugatory prong the court found that the preservation order had lapsed on 22nd September 2007, no extension had been sought, and there were no pending proceedings capable of being stayed. The application was dismissed with no order as to costs. The court expressly eschewed expressing views on the merits of the intended appeal, leaving them to the bench that will hear it.

Key legal issues

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01

Whether an application for a preservation order under section 56 of the Anti-Corruption and Economic Crimes Act can be made without a pending recovery suit

Holding

The court found it arguable that an application under section 56 must precede or accompany recovery proceedings, and that a preservation order without a pending action could remain in force indefinitely, which would be absurd and unjust.

Reasoning

Section 56 is silent on what follows a preservation order. Read with section 7(1)(h)(i), which empowers the Commission to institute civil recovery proceedings, a preservation order must be intended to preserve property pending a substantive action. Allowing a standalone application to be repeatedly extended would lead to an absurd and unjust result. This sufficed as one arguable point without deciding the merits.

p. 3
02

Whether there were pending proceedings capable of being stayed

Holding

There were none. The ex parte preservation order had lapsed on 22nd September 2007, no extension had been sought, and the Commission had not demonstrated an intention to file recovery proceedings; criminal proceedings are not recovery proceedings under section 56.

Reasoning

The preservation order was granted for six months with liberty to extend; no extension application was made and the order had lapsed before the application was argued. The Commission had not shown it intended to file civil recovery proceedings, and the criminal proceedings against the applicant could not be treated as such proceedings. Hence nothing remained to be stayed and the nugatory-prong analysis failed.

p. 4

Legal principles established

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  • On a rule 5(2)(b) application the applicant must show the appeal is arguable and that, absent a stay or injunction, the appeal would be rendered nugatory
  • A single arguable point suffices for a rule 5(2)(b) application

Court orders

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  1. 1.The application for stay of proceedings under rule 5(2)(b) is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Anti-Corruption and Economic Crimes Act, No. 3 of 2003Section 56
  • Anti-Corruption and Economic Crimes Act, No. 3 of 2003Section 7(1)(h)(i)
  • Civil Procedure RulesOrder IV rule 1
  • Civil Procedure ActDefinition of 'suit'
  • Government Lands ActSections 8 and 136
  • Government Proceedings ActSection 3A
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Civil Application No. 186 of 2007
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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Dakane Abdullahi Ali v Kenya Anti Corruption Commission & 2 others [2008] KECA 252 (KLR)", Case Analysis (2008). Civil Application No. 255 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/252/eng@2008-02-08

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