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Court of AppealDismissedCivil Application No. 238 of 2009

General Plastics Ltd v Industrial Property Tribunal & another [2010] KECA 444 (KLR)

Court of Appeal of Kenya
15 January 2010
ROR.S.C. OmoloEOE.O. O'KubasuDAD.K.S. Aganyanya
2,548 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause Tribunal proceedings because winning the appeal later would not make it pointless—costs would cover any wasted hearing.

What this practically means

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Executive summary

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This was a single-judge-panel ruling (Omolo, O'Kubasu and Aganyanya, JJA) of the Court of Appeal at Nairobi on General Plastics Ltd's application for a stay of proceedings before the Industrial Property Tribunal pending an intended appeal against Wendoh J's judgment of 30 April 2009, which had dismissed the applicant's constitutional petition. The background was a long-running dispute since 2002 over the registration of 12 industrial designs held by Safepak Ltd. The applicant, a manufacturer of plastic containers, sought revocation of the designs before the Tribunal; when the Tribunal refused its application to adduce additional evidence, it filed a constitutional petition under sections 77(1) and 77(9) of the former Constitution. Wendoh J dismissed the petition, holding the Tribunal had not used the failure to adduce evidence to dismiss the application, that the proper remedy was an appeal under section 115(1) of the Industrial Property Act, and that the applicant had abused the court process. On appeal, counsel abandoned all prayers except a stay of proceedings in five Tribunal causes. Applying the established twin test - arguability and nugatory impact - the Court assumed, without deciding, that the appeal was arguable, but held the applicant failed on the nugatory limb. Following Silverstein v Chesoni and Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd, it reasoned that the relevant appeal is the one filed in the Court of Appeal, and that even if the Tribunal proceedings concluded and the appeal later succeeded, costs would adequately remedy any unnecessary hearing. The application was dismissed with costs. The High Court's decision itself was not disturbed, as this was an interlocutory application, not the hearing of the 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 applicant's intended appeal was arguable
  2. 2.Whether the intended appeal would be rendered nugatory if the stay of proceedings in the Industrial Property Tribunal were not granted

Key legal issues

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01

Whether the applicant satisfied the nugatory limb of the Rule 5(2)(b) test for stay of proceedings

Holding

The Court held the applicant failed to demonstrate that its appeal would be rendered nugatory if the Tribunal proceedings were concluded, since a successful appeal could be adequately compensated by an order for costs.

Reasoning

Following Silverstein v Chesoni and Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd, the Court reasoned that the appeal whose success could be rendered nugatory is the appeal already filed in the Court of Appeal. If the Tribunal proceedings concluded and the applicant's appeal later succeeded, the Tribunal proceedings would simply have been unnecessary, and an appropriate order for costs could remedy that; the appeal would not be worthless. The Court also noted the Industrial Property Act provides a procedure for a dissatisfied party.

p. 5
02

The existence of an alternative statutory remedy for a party dissatisfied with the Industrial Property Tribunal

Holding

The Court observed that the Industrial Property Act contains an open and available procedure for a dissatisfied party, implicitly endorsing the High Court's view that appeal under section 115 was the proper route rather than a constitutional petition.

Reasoning

The Court noted the applicant's main complaint was denial of the right to adduce additional evidence, but pointed out that the Industrial Property Act has a procedure for a dissatisfied party which was open and available. It declined to declare the intended appeal frivolous but applied the nugatory test strictly, effectively affirming the High Court's dismissal of the constitutional petition as an abuse of process.

p. 4

Legal principles established

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  • An applicant for stay of proceedings pending appeal must satisfy the twin test that the appeal is arguable and that, if successful, it would be rendered nugatory absent the stay; where proceedings in the subordinate court or tribunal can be remedied by costs if the appeal later succeeds, the nugatory limb is not satisfied.
  • For the nugatory test on a stay of proceedings, the relevant appeal is the one filed in the Court of Appeal, not any pending in the High Court, and where an appropriate order for costs can remedy an unnecessary hearing the appeal is not rendered nugatory.

Court orders

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  1. 1.Application for stay of proceedings dismissed
  2. 2.Costs awarded to the respondents

The bench

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

RO
majority
EO
majority
DA
majority
On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Appl. No. 348 of 2006
Jurisdiction invoked
Section 3 of the Appellate Jurisdiction Act, Cap 9, and Rules 5(2)(b), 42 and 47(1) of the Court of Appeal Rules

Relief refused

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Stay of proceedings of Industrial Property Cause Nos. 16/27 of 2002, 17/28 of 2002, 18/29 of 2002, 24/37 of 2002 and 23/25 of 2002 pending the intended appeal

The applicant failed to satisfy the Court that the intended appeal would be rendered nugatory if the proceedings were allowed to conclude; costs can remedy any unnecessary hearing in the tribunal.

p. 5

Costs

The application was dismissed with costs.

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.

The discretion of the Court on an application of this kind has to be exercised upon the established principles which require an applicant to satisfy the Court both that the intended appeal or appeal (as the case may be) is arguable and that unless the order sought is granted, the appeal if successful, would be rendered nugatory.
p. 4Twin test for stay pending appeal
the appeal whose success would be rendered nugatory if we do not grant a stay is the appeal already filed in this Court, not the appeal pending in the High Court
p. 4Nugatory test - relevant appeal
the applicant has failed to satisfy us that without the stay of proceedings applied for its appeal will be rendered nugatory
p. 5Failure of nugatory limb
The application is therefore dismissed with costs.
p. 5Disposition

Issues in the judgment

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minor

The cause numbers in the prayer quoted at the start of the ruling and again later differ: '24/37 of 2002, 23/25 of 2002' appears in the first quotation, while the later restatement reads '24/37 of 2002, 25/25 of 2002'.

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, "General Plastics Ltd v Industrial Property Tribunal & another [2010] KECA 444 (KLR)", Case Analysis (2010). Civil Application No. 238 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/444/eng@2010-01-15

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