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Court of AppealDismissedCivil Application 145 of 2009 (UR 95/2009)· [2009] KECA 252 (KLR)

KENYA REVENUE AUTHORITY v DE LA RUE CURRENCY AND SECURITY PRINT LTD & 2 others [2009] KECA 252 (KLR)

Court of Appeal of Kenya
3 July 2009
SBS. E. O. BosireEGE. M. GithinjiAVAlnashir Visram
1,633 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to halt High Court orders against KRA, ruling that simply complying with the law can never make an appeal pointless.

What this practically means

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Executive summary

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The Kenya Revenue Authority applied under Rule 5(2)(b) of the Court of Appeal Rules for a stay of execution of orders made by Nyamu, J on 18th December 2008 in H.C. Misc. Civil Appl. No. 540 of 2008. The High Court had found, in a judicial review challenge brought by De La Rue Currency and Security Print Ltd, that KRA breached mandatory provisions of the Public Procurement and Disposal Act in awarding a tender for self-adhesive stamps to Madras Security Printers, and granted five of six prayers, including certiorari quashing the Review Board's decision and KRA's award, prohibition and mandamus. Pending appeal, KRA argued the appeal raised arguable points - including De La Rue's entitlement to a margin of preference and whether it suffered prejudice - and that refusal of stay would render the appeal nugatory and expose it to contempt proceedings. The 1st respondent conceded arguability but denied nugatory-ness. Applying the established two-limb test, the Court held the appeal arguable but found the nugatory limb unsatisfied: the applicant was simply required to follow the law, and compliance could not render the appeal nugatory. The Notice of Motion dated 28th May 2009 was dismissed with costs to the 1st respondent. The ruling reiterates that both limbs of the Rule 5(2)(b) test must be satisfied and that arguability does not import probable success.

Key legal issues

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01

Whether the appeal was arguable

Holding

Yes - the Court found the appeal arguable, the 1st respondent having conceded this, but noted this finding says nothing about ultimate success.

Reasoning

The 1st respondent's counsel conceded the appeal was arguable, and the Court agreed. The Court stressed that arguability does not require probable success on appeal; a single arguable point suffices. However, this limb alone cannot secure a stay under Rule 5(2)(b); the applicant must also demonstrate the nugatory-ness limb.

p. 4
02

Whether the appeal would be rendered nugatory absent a stay

Holding

No - the Court was not satisfied on the nugatory limb and accordingly refused the stay.

Reasoning

The applicant's grievance was that compliance with the High Court orders would expose it to contempt or would make the appeal pointless. The Court held that complying with the law cannot render an appeal nugatory; the nugatory principle protects the substratum of the appeal, not an applicant's convenience or reluctance to comply with valid orders. Failing the second limb, the application had to fail notwithstanding arguability.

p. 4

Legal principles established

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  • On a Rule 5(2)(b) application the applicant must satisfy the Court both that the appeal is arguable and that unless the order sought is granted the appeal, if successful, would be rendered nugatory; both limbs must be met.
  • An arguable point is not necessarily one that must succeed when the appeal is eventually heard and determined; the threshold is low.

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 28th May, 2009 seeking stay of execution
  2. 2.Costs of the application awarded to the 1st respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Public Procurement and Disposal ActSection 39(8)(a)
  • Public Procurement and Disposal ActSection 39(8)(b)
  • Public Procurement and Disposal ActSection 66(6)
  • Public Procurement and Disposal ActSection 66
  • Public Procurement and Disposal RegulationsRegulation 28(2)(a)
  • Public Procurement and Disposal RegulationsRegulation 46
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Civil Appl. No. 540 of 2008
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "KENYA REVENUE AUTHORITY v DE LA RUE CURRENCY AND SECURITY PRINT LTD & 2 others [2009] KECA 252 (KLR)", Case Analysis (2009). Civil Application 145 of 2009 (UR 95/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/252/eng@2009-07-03

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