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Court of AppealDismissedCivil Appeal No. 49 of 2011· [2013] KECA 151 (KLR)

Tanzania Roads Agency v Kundan Singh Construction Ltd & another [2013] KECA 151 (KLR)

Court of Appeal
14 October 2013
EGE. M. GithinjiASAsike-MakhandiaFSF. Sichale
2,348 words in judgment
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The bottom line

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Kenya's Court of Appeal threw out Tanzania Roads Agency's appeal because events had made the case pointless — courts never issue orders in vain.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Githinji, Makhandia and Sichale, JJ.A.) dismissed an appeal by Tanzania Roads Agency against a ruling of Azangalala, J. dated 20th July 2010 in H.C.C.C. No. 8 of 2010, by which the High Court had stayed the appellant's Mombasa suit and accompanying application pending the hearing and determination of H.C.C.C. No. 164 of 2009 (the Milimani case). The respondents had successfully applied in the High Court to strike out or stay the Mombasa suit on the ground that its issues were directly and substantially in issue in the Milimani case, contrary to section 6 of the Civil Procedure Act. The dispute concerned bank performance and advance payment guarantees issued by Kenya Commercial Bank in respect of a road-upgrading contract in Tanzania. Before the Court of Appeal, counsel for the appellant argued that the parties and issues in the two suits differed and that the stay was a blanket order; the respondents maintained the overlap between the pleadings. The Court did not address those merits. Relying on the common position that the Milimani case had been heard and was pending only enforcement of the decree or a ruling on a dismissal application, the Court held that allowing or dismissing the appeal would have no practical effect and risked a legal absurdity, since court orders are never issued in vain. The appeal was dismissed, with each party bearing its own costs of the appeal.

Key legal issues

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01

Mootness of an appeal overtaken by events

Holding

The Court dismissed the appeal on the narrow ground that it had been overtaken by events, without considering the merits, because the Milimani case had been heard and was pending either enforcement of the decree or a ruling on its dismissal.

Reasoning

Both parties conceded that the Milimani case, in which the stay order was anchored, had substantially progressed towards conclusion. Allowing the appeal would require the two cases to proceed simultaneously though one was effectively concluded; dismissing it would approve a stay with nothing left to stay. Either outcome would render the Court's order futile, and the Court refused to issue orders in vain.

p. 4

Legal principles established

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  • An appellate court will decline to determine an appeal whose determination would have no practical effect because events have overtaken it, as court orders are never issued in vain.
  • Where a stay of proceedings is sought pending determination of another suit, a court should not make an order that would result in a legal absurdity.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party shall bear its own costs of the appeal

Authorities

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Legislation

  • Civil Procedure Actsection 6
  • Civil Procedure Actsections 1A and 1B
  • Arbitration Actsection 6
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 8 of 2010
Jurisdiction invoked
First appellate jurisdiction over an appeal from the High Court (Civil Appeal No. 49 of 2011)

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, "Tanzania Roads Agency v Kundan Singh Construction Ltd & another [2013] KECA 151 (KLR)", Case Analysis (2013). Civil Appeal No. 49 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/151/eng@2013-10-14

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