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Court of AppealStruck OutCivil Application No. 70 of 2009 (UR 41/2009)

DELTA CONNECTION LIMITED V DELTA AIRLINES INCORPORATED [2009] KECA 302 (KLR)

Court of Appeal of Kenya
5 June 2009
ROR.S.C. OmoloEOE.O. O'KubasuPWP.N. Waki
1,692 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it cannot suspend a prohibitory injunction under rule 5(2)(b), so Delta Connection's application was struck out as incompetent.

What this practically means

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Executive summary

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Delta Connection Limited, a local airline, applied under rule 5(2)(b) of the Court of Appeal Rules for a stay of execution of, and a stay of further proceedings pursuant to, an interlocutory injunction granted by Khaminwa, J. of the High Court on 2nd March 2009 in favour of Delta Airlines Incorporated, restraining the applicant from infringing its registered 'Delta' trade mark, pending an appeal (Civil Appeal No. 44 of 2009). Counsel for the applicant argued the appeal was arguable - contending the respondent obtained its Kenyan trade mark registration only after the applicant had commenced operations and that the judge made final findings at an interlocutory stage - and that refusal would devastate the applicant's operations. Counsel for the respondent objected that the Court had no jurisdiction to stay an injunction, relying on Consolidated Bank of Kenya v Dolphin Auctioneers. The Court of Appeal (Omolo, O'Kubasu and Waki, JJ.A) agreed. Reading rule 5(2)(b) literally, the Court held it may order only a stay of execution, an injunction, or a stay of further proceedings; a stay of execution of a prohibitory injunction is not among those orders and cannot qualify as a stay of execution, since execution results only from a mandatory injunction. Following its own precedent in Consolidated Bank v Dolphin Auctioneers, the Court declined to consider arguability or nugatory-ness, declared the motion incompetent, struck it out, and ordered that the costs of the motion be in the appeal. The decision binds subordinate courts and the High Court on the limits of rule 5(2)(b) jurisdiction over prohibitory injunctions.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court has jurisdiction under rule 5(2)(b) of the Court of Appeal Rules to grant a stay of a prohibitory injunction
  2. 2.If jurisdiction exists, whether the intended appeal is arguable and whether refusal of the stay would render it nugatory

Key legal issues

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01

Jurisdiction under rule 5(2)(b) to stay a prohibitory injunction

Holding

The Court lacks jurisdiction to stay a prohibitory injunction; a stay of execution applies to decrees and mandatory injunctive orders but not to prohibitory injunctions, making such an application incompetent.

Reasoning

The Court examined the literal wording of rule 5(2)(b), which empowers it to order a stay of execution, an injunction, or a stay of further proceedings. A stay of execution of an injunction is not among those orders and cannot be squeezed into 'stay of execution', since execution may result only from a mandatory injunction. Following its own decision in Consolidated Bank of Kenya v Dolphin Auctioneers, the Court held the motion incompetent and struck it out without reaching the arguability and nugatory-ness tests.

p. 3
02

The two guiding principles for rule 5(2)(b) applications

Holding

An applicant under rule 5(2)(b) must satisfy that the intended appeal is arguable and that the appeal will be rendered nugatory unless a stay is granted.

Reasoning

The Court restated the settled test under rule 5(2)(b): the jurisdiction is original and discretionary, and success requires the twin tests of an arguable (not frivolous) appeal and nugatory-ness. However, because the Court found it lacked jurisdiction to grant the order sought, it did not consider these merits, expressly stating it did not fall for it to consider whether the appeal was arguable or nugatory.

p. 3

Legal principles established

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  • The Court of Appeal has no jurisdiction under rule 5(2)(b) of the Court of Appeal Rules to grant a stay of a prohibitory injunction; a stay of an injunction order cannot qualify as a stay of execution.
  • Rule 5(2)(b) confers jurisdiction only for three orders: a stay of execution, an injunction, and a stay of further proceedings.

Court orders

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  1. 1.The notice of motion dated 16th March, 2009 is incompetent and is struck out
  2. 2.The costs of the motion shall be in the appeal

The bench

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

RO
majority
EO
majority
PW
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C. Suit No. 770 of 2008
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the High Court injunction order and stay of further proceedings in the High Court suit pending appeal

Rule 5(2)(b) does not confer jurisdiction to stay a prohibitory injunction; the application is incompetent

p. 3

Costs

The costs of the motion shall be in the appeal.

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.

As rule 5(2)(b) of this Court's Rules does not give us jurisdiction to grant a stay of a prohibitory injunction, this application is incompetent.
p. 3Absence of jurisdiction to stay a prohibitory injunction
Having come to that conclusion we need say no more than that the notice of motion dated 16th March, 2009 is incompetent and we order that it be and is hereby struck out. The costs of the motion shall be in the appeal.
p. 4Final orders - striking out and costs
Clearly "a stay of execution of an injunction" is not included in that provision, and we think a stay of an injunction order cannot qualify as a stay of execution.
p. 3A stay of an injunction is not a stay of execution

Issues in the judgment

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minor

The Court strikes out 'the notice of motion dated 16th March, 2009' although the ruling earlier describes the application as a notice of motion whose filing date is not expressly stated, and the grounds reference a notice of appeal filed 10th March, 2009; the motion date of 16th March 2009 appears only at the disposition.

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, "DELTA CONNECTION LIMITED V DELTA AIRLINES INCORPORATED [2009] KECA 302 (KLR)", Case Analysis (2009). Civil Application No. 70 of 2009 (UR 41/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/302/eng@2009-06-05

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