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Court of AppealDismissedCivil Application No. NAI 16 of 2014 (UR 11/2014)· [2014] KECA 871 (KLR)

Nairobi Metropolitan PSV Saccos Union Limited & 26 Others v County of Nairobi Government & 3 Others

Court of Appeal
6 June 2014
Mohamed Abdulahi WarsameM. WarsameSKS. Gatembu KairuAMA. K. Murgor
3,793 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to suspend Nairobi's higher parking fees, ruling the county could keep collecting the money while the legal challenge continues.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Warsame, Gatembu Kairu and Murgor, JJ.A) on an application for an injunction restraining implementation of paragraph 6.1 of the Schedule to the Nairobi City County Finance Act, 2013, pending an intended appeal against the High Court's dismissal (Lenaola J, 18 December 2013) of a consolidated petition challenging the Nairobi County Government's increase of parking fees from Kshs 140 to Kshs 300 per day. The respondents first challenged the competency of the application, arguing that the High Court having merely dismissed the petition, there was no positive order capable of being stayed, relying on Western College v Oranga and related authorities. The Court nevertheless held that rule 5(2)(b) confers original, discretionary jurisdiction to grant an injunction pending appeal to preserve the subject matter of the appeal or facilitate a proportionate resolution of the dispute. On the merits of the application, the Court found the intended appeal arguable on grounds of due process in the passage of the county legislation and the relationship between county and national formulae for parking fees. However, the nugatory limb failed: the Act was already in operation, revenue was being collected and had been budgeted and appropriated for county functions, and the balance of convenience favoured the respondents. The application was dismissed with costs abiding the outcome of the intended appeal. The ruling binds subordinate courts and High Courts on the availability of rule 5(2)(b) injunctive relief even absent a positive order below, though the substantive constitutional questions remain for the full appeal.

Key legal issues

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01

Competency of an application for stay/injunction pending appeal where the High Court dismissed the petition without a positive order

Holding

The Court held it has jurisdiction to grant an injunction pending appeal notwithstanding the absence of a positive order below, distinguishing the line of authority requiring a positive enforceable order.

Reasoning

The respondents relied on Western College v Oranga, Republic v Kenya Wildlife Service, Stanbic Bank, Shimmers Plaza and related cases holding that no stay lies where the court below made no positive order. The Court, however, invoking Ishmael Kagunyi Thande and Equity Bank v West Link Mbo, held that rule 5(2)(b) confers original, discretionary jurisdiction as a court of first instance, designed to preserve the subject matter of the appeal, and that it could grant an injunction where it facilitates a proportionate resolution of the dispute.

p. 6
02

Whether the intended appeal is arguable

Holding

The appeal was held arguable on grounds concerning due process in passing the county finance legislation and the relationship between county and national legislative formulae for parking fees.

Reasoning

Counsel for the applicants argued the parking fee increase was passed in contravention of due process and that national legislation prescribes the formula for parking fees which the county cannot contradict. The respondents countered that the Speaker confirmed due procedure and that public participation must be read with transitional clauses. The Court found these points arguable and deserving of full ventilation, without deciding them.

p. 7
03

Whether the appeal would be rendered nugatory absent an injunction

Holding

The nugatory limb failed: the balance of convenience favoured the respondents because the Act was already in operation and the collected revenue had been budgeted and appropriated.

Reasoning

The respondents showed the Act, due to commence in November 2013, had been delayed by litigation, and that ninety-seven days of budgeted parking revenue had already been lost and further collections appropriated to recurrent and development expenditure. Granting the injunction would occasion irreparable loss to the county and jeopardise revenue already collected. Each case must be weighed on its own facts.

p. 7

Legal principles established

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  • The Court of Appeal has jurisdiction under rule 5(2)(b) to grant an injunction pending appeal to preserve the subject matter of the intended appeal, even where the High Court made no positive order capable of being stayed.
  • An applicant for an injunction or stay pending appeal must show the appeal is arguable and that, if successful, it would be rendered nugatory without the order.

Court orders

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  1. 1.Application dismissed
  2. 2.Costs of the application to abide the outcome of the intended appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 190
  • Nairobi City County Finance ActParagraph 6.1 of the Schedule
  • Traffic ActSection 72B
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (18)

  • Patel v Transworld Safaris Ltd
    [2004] eKLR

    Discretionary jurisdiction must be based on evidence and sound legal principles; duty on applicant to place evidence before court.

  • Githinji v Amrit & Another
    [2004] eKLR

    Rule 5(2)(b) principles: arguable appeal and nugatory result if stay refused.

  • Ishmael Kagunyi Thande v Housing Finance of Kenya Ltd
    Civil Application No. Nai 157 of 2006

    Rule 5(2)(b) jurisdiction is original and discretionary; two settled principles guide it.

  • Western College of Arts & Applied Sciences v Oranga & Others
    [1976-80] 1 KLR 78

    No stay/injunction lies where the judgment below contains nothing to enforce or restrain other than costs.

  • Republic v Kenya Wildlife Service & 2 Others
    Civil Application No. Nai 12 of 2007

    No jurisdiction to grant stay where the superior court made no positive and enforceable order.

  • Stanbic Bank Kenya Ltd v Kenya Revenue Authority
    [2008] eKLR, Civil Application No. Nai 294 of 2007 (UR 200 of 2007)

    Dismissal of judicial review application leaves no positive order capable of being stayed.

  • Shimmers Plaza Limited v National Bank of Kenya Ltd
    [2013] eKLR, Civil Application 38 of 2013

    No positive and enforceable order made by the superior court capable of being the subject of an injunction or stay.

  • Kenya Hotel Properties Limited v Willesden Investments Ltd
    [2011] eKLR, Civil Application No. Nai 131 of 2010 (UR 97/2010)

    Where the suit and application were dismissed, there is nothing capable of being stayed.

  • Marangu v Rucha & Another v Attorney General & 10 Others
    [2014] eKLR, Civil Application No. 180 of 2013 (Ur 127/2013)

    Order not directing any party to do or refrain from doing anything is not stayable.

  • F & S Scientific Ltd v Kenya Revenue Authority & Another
    Civil Application No. 260 of 2012

    Stay of 'implementation' is tantamount to stay of execution or injunction; not grantable where the action was dismissed.

  • Equity Bank Limited v West Link Mbo Limited
    Civil Application No. NAI 78 of 2011

    On 5(2)(b) applications the Court exercises discretion as a court of first instance; rule is a procedural innovation for preservation of subject matter.

  • Mbaabu Mbui & Another v Langata Gardens Limited
    [2011] eKLR, Civil Application Nai 73 of 2011 (Ur 49/2011)

    Injunction pending appeal may issue to preserve subject matter or facilitate proportionate resolution.

  • Lake Tanners Limited & 2 Others v Oriental Commercial Bank Limited
    [2010] eKLR, Civil Application No. 64 of 2010

    Substantial loss consideration applies to injunction pending appeal; purpose is to preserve status quo.

  • Royal Media Services Ltd & 2 Others v Attorney General & 8 Others
    [2013] eKLR, Civil Application No. Nai 341 of 2013 (UR 251 of 2013)

    Injunction pending appeal granted where appeal arguable and refusal would render it nugatory.

  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others
    [2013] eKLR, Civil Application 31 of 2012

    Single bona fide arguable ground suffices; arguable appeal need not necessarily succeed.

  • Reliance Bank Ltd v Norlake Investments Limited
    (2002) 1 EA 227

    Competing claims must be carefully weighed; each case determined on its own peculiar facts.

  • Republic v City Council of Nairobi & 2 Others exparte Kaka Travellers Sacco Ltd & Others
    Nairobi HC JR No. 323 of 2010

    Applicants' contention that under section 72B of the Traffic Act parking charges could only be levied by parking meters; cited in the petition below.

  • Wilson v Church

    Distinguished in Western College: High Court there had ordered trustees to make a payment, unlike a bare dismissal.

On appeal from
High Court
Nairobi High Court Cons. Petition No. 486 of 2013
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (injunction pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (21)

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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, "Nairobi Metropolitan PSV Saccos Union Limited & 26 Others v County of Nairobi Government & 3 Others", Case Analysis (2014). Civil Application No. NAI 16 of 2014 (UR 11/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/871/eng@2014-06-06

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