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Court of AppealDismissedCivil Appli No. 284 of 2007· [2008] KECA 261 (KLR)

Adopt-A-Light Ltd v City Council of Nairobi [2008] KECA 261 (KLR)

Court of Appeal of Kenya
8 February 2008
Philip Kiptoo TunoiP.K. TunoiEOE.O. O'KubasuJOJ.W. Onyango Otieno
1,357 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause the Nairobi City Council's decisions because the company's feared losses could be compensated with money.

What this practically means

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Executive summary

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Adopt-A-Light Ltd, which held contracts with the City Council of Nairobi for advertising and street lighting, sought leave for judicial review orders of certiorari and prohibition against Council resolutions and a tender award. Wendoh, J declined leave by a ruling dated 2 November 2007, directed the parties to pursue pending civil suits, and awarded costs to the Council. The applicant then moved the Court of Appeal under Rule 5(2)(b) seeking stays of the Council's disconnection decision, the tender, statutory notices, the April 2007 resolution, and the costs order, pending an intended appeal. The Court of Appeal (Tunoi, O'Kubasu and Onyango Otieno, JJA) unanimously dismissed the application. It held, applying Western College v Oranga, that the High Court ruling was in substance a dismissal, leaving nothing capable of being stayed except the payment of costs. Applying the established twin criteria from Githunguri v Jimba Credit Corporation and National Bank of Kenya v Samcon, the Court accepted that the intended appeal was arguable, as the respondent conceded, but held the nugatory-ness limb failed: the applicant's fears involved perceived damages capable of quantification, the respondent was not shown to be impecunious, the decisions were not shown to be irreversible, and the applicant already enjoyed protection under orders in HC.CC No. 637 of 2006. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether there was anything capable of being stayed

Holding

The applicant's application before the High Court was in essence dismissed, so only the costs order was capable of being stayed.

Reasoning

The Court characterised Wendoh, J's ruling as a dismissal of the chamber summons, not a mere withholding of relief. A dismissal leaves no substantive orders to stay; the only surviving order was the award of costs to the respondent, following Western College of Arts and Applied Sciences v Oranga & Others.

p. 2
02

Whether the intended appeal was arguable

Holding

The intended appeal was arguable and not frivolous, a view conceded by the respondent's counsel.

Reasoning

The draft memorandum raised 14 grounds, including that the judge erred in treating the legality of the contract as immaterial to the grant of leave, and in declining jurisdiction because alternative civil remedies existed. The Court was satisfied on these grounds that the appeal was arguable.

p. 2
03

Whether the appeal would be rendered nugatory absent the orders sought

Holding

The nugatory test was not satisfied because the feared damages were quantifiable and the respondent was not shown to be impecunious.

Reasoning

Although the applicant cited job losses, risks to street lighting and security, and an investment exceeding Kshs 500,000,000, the Court held these were perceived damages capable of quantification, that no impecuniosity of the respondent was shown, that the decisions were not shown to be irreversible, and that the applicant already had protection from orders in HC.CC No. 637 of 2006.

p. 3

Legal principles established

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  • An application for judicial review leave that is refused is in substance a dismissal, leaving nothing capable of being stayed save for payment of costs.
  • On a Rule 5(2)(b) application the applicant must show the intended appeal is arguable and that if no order is granted, the success of the intended appeal would be rendered nugatory.
  • Perceived damages that are quantifiable, and against a respondent able to pay a money decree, do not satisfy the nugatory-ness test.

Court orders

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  1. 1.The application be and is hereby dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Physical Planning Act

Cases cited (3)

  • Western College of Arts and Applied Sciences vs Oranga & Others
    [1976] KLR 63
  • Githunguri vs Jimba Credit Corporation
    [1983] KLR 838
  • National Bank of Kenya Ltd vs Samcon Ltd
    [2003] KR 462
On appeal from
High Court of Kenya, Nairobi
H.C. Misc. Application No. 1110 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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Cite this brief

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Cite this brief

Caselaw, "Adopt-A-Light Ltd v City Council of Nairobi [2008] KECA 261 (KLR)", Case Analysis (2008). Civil Appli No. 284 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/261/eng@2008-02-08

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