Municipal Council of Mombasa & another v Kenya Transport Association [2011] KECA 312 (KLR)
The bottom line
#The Court of Appeal ruled it cannot stay an injunction or a dismissal, and paused hearings only in rare cases, so the Kenyan Transport Association's win stood.
What this practically means
#Executive summary
#Key legal issues
#Characterisation of the exparte conservatory order as an injunctive order
Although the learned Judge described the order as a conservatory order, in substance it was a restraining order of injunction, so no stay of its execution lies under Rule 5(2)(b)
The Court looked at substance over form: the order was granted in terms of prayer 2 of the application, which was by its terms and effect a restraining order preserving the status quo ante. The label of conservatory order under the supervisory jurisdiction rules did not change its injunctive character, and the Court's settled position is that it has no jurisdiction under Rule 5(2)(b) to stay execution of injunctions.
Whether the 4th February 2011 order could be stayed
The order dismissing the application to set aside the exparte orders was a negative order incapable of being stayed
A dismissal of an application is a negative order; there is nothing to stay. The word 'confirmed' used by the High Court meant only that the exparte order would remain in force until the inter partes hearing, not that a positive order had been made capable of stay.
Stay of proceedings pending appeal
Stay of proceedings refused; the petition should proceed to hearing where all issues can be conclusively determined
The Court has jurisdiction under Rule 5(2)(b) to stay proceedings but exercises it sparingly. Here the intended appeal is interlocutory and all matters, including the competence of the petition and legality of the Public Private Partnership, could be canvassed at the petition hearing. Refusing the stay served the overriding objective under Sections 3A and 3B of the Appellate Jurisdiction Act.
Legal principles established
#- The Court of Appeal has no jurisdiction under Rule 5(2)(b) to stay execution of an order of injunction
- A negative order, such as the dismissal of an application, is not capable of being stayed
- Stay of proceedings is granted very sparingly and only in exceptional circumstances
- An order of injunction remains in force until set aside on appeal or varied by the court issuing it
Court orders
#- 1.Application dismissed with costs to the Respondent
- On appeal from
- High Court of Kenya at Mombasa
- Constitutional Petition No. 6 of 2011
- Jurisdiction invoked
- Sections 3(2), 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Municipal Council of Mombasa & another v Kenya Transport Association [2011] KECA 312 (KLR)", Case Analysis (2011). Civil Application No. Nai. 26 of 2011 (UR. 19/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/312/eng@2011-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.