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Court of AppealDismissedCivil Application No. NAI. 35 of 2014 (UR. 27/2014)· [2014] KECA 547 (KLR)

Governors Ballon Safaris Limited v Skyship Company Limited & another [2014] KECA 547 (KLR)

Court of Appeal
13 June 2014
PWP. N. WakiKMK. M'inotiJMJ. Mohammed
1,677 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to halt a costs taxation, ruling that taxation has its own built-in remedies, so a stay of proceedings was unnecessary.

What this practically means

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Executive summary

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This was an application under Rule 5(2)(b) of the Court of Appeal Rules by Governors Balloon Safaris Limited (GBS) seeking a stay of further proceedings in Nairobi High Court Civil Case No. 461 of 2008 pending an intended appeal against a ruling of Mabeya, J. dated 22 November 2013, which dismissed GBS's suit for want of prosecution. GBS and Skyship Company Limited both operate hot air balloon services in the Maasai Mara. GBS claimed exclusive contractual rights against Transmara County Council and sued when Transmara contracted with Skyship. The High Court dismissed GBS's suit for inordinate delay in prosecuting it. Before the Court of Appeal, GBS argued the intended appeal was arguable, pointing among other things to unresolved cross-cutting issues and an unaddressed counter-claim, and on the nugatory limb relied on an astronomical un-taxed bill of costs of Kshs. 70 million said to be capable of destroying it. The respondents contended the appeal was a non-starter and that adequate remedies existed against any taxed costs. The court found the first limb satisfied, holding that the intended appeal was not frivolous since the High Court said nothing about Transmara's counter-claim and one bona fide arguable issue suffices. However, on the second limb it held the appeal would not be rendered nugatory because the only proceedings targeted were on taxation, for which remedies of opposition, review and stay of execution exist. The application was dismissed with costs.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The intended appeal was not frivolous because the High Court, in dismissing GBS's suit, made no order on Transmara's counter-claim, which may well be subsisting

Reasoning

The court identified that the dismissal of the Nairobi suit left the counter-claim unaddressed, and the cross-cutting issues relating to the two agreements with Transmara were capable of argument. A single bona fide arguable issue suffices under the first limb of the Rule 5(2)(b) test, and the applicant crossed that threshold.

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02

Whether the intended appeal would be rendered nugatory if stay of proceedings is not granted

Holding

No, because the only targeted proceedings concerned taxation of bills of costs, for which alternative remedies exist, so stay of proceedings was inappropriate

Reasoning

The court reasoned that GBS could oppose the taxation in the normal manner, seek review if dissatisfied, and invoke stay of execution if necessary. Because these adequate remedies existed and no proceedings on the counter-claim were identified as targeted, the second limb of the Rule 5(2)(b) test failed and the discretion was declined.

p. 3

Legal principles established

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  • Rule 5(2)(b) applications require the applicant to establish both an arguable appeal and that the appeal would be rendered nugatory if stay is not granted
  • A single bona fide arguable issue suffices to satisfy the first limb of the Rule 5(2)(b) test
  • Stay of proceedings is inappropriate where adequate alternative remedies exist for the proceedings sought to be stayed, such as opposition to taxation, review and stay of execution

Court orders

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  1. 1.The notice of motion dated 25th February 2014 is dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure RulesOrder 16 Rule 5

Cases cited (1)

  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA page 227
On appeal from
High Court of Kenya at Milimani, Nairobi
H.C.C. Case No. 461 of 2008
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Governors Ballon Safaris Limited v Skyship Company Limited & another [2014] KECA 547 (KLR)", Case Analysis (2014). Civil Application No. NAI. 35 of 2014 (UR. 27/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/547/eng@2014-06-13

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