Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. NAI 70 of 2013· [2015] KECA 519 (KLR)

Royal Media Services v Telcom Kenya Limited & 13 others [2015] KECA 519 (KLR)

Court of Appeal
10 July 2015
2,248 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal dismissed Royal Media Services' stay application because untaxed bills of costs meant there was nothing yet to stay.

What this practically means

#

Executive summary

#
Royal Media Services applied under Rule 5(2)(b) of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act for a stay of execution of a ruling of the High Court (Mugo, J.) dated 24th November 2004, in H.C.C.C. No. 15 of 2000, which dismissed its suit for want of prosecution with costs. The background was contentious taxation: the 3rd respondent's bill of costs was initially taxed at some Kshs.394 million in instruction fees; on a reference the High Court allowed the objection and remitted item No. 1 for fresh taxation before another Taxing Officer, who taxed it at Kshs.1 million, a figure the 3rd respondent challenged by its own reference. Other bills were pending taxation. The applicant argued the intended appeal was arguable on 25 grounds and that it would be rendered nugatory if forced to pay over a billion shillings that might be irrecoverable. The respondents countered that the application was filed after an inordinate eight-year delay, that a similar application had been rejected by Ransley, J. in 2005, and that the bills not having been taxed, there was nothing to stay. Applying the settled two-limb Rule 5(2)(b) test, the Court (Visram, Sichale and Kantai, JJ.A) found the intended appeal arguable given the want-of-prosecution dismissal and the jurisdictional issues raised, but held that since the bills had not been taxed there was nothing capable of being stayed. The application was dismissed as premature and misconceived, with costs to the respondents present before the Court (the 1st, 2nd, 3rd, 13th and 14th respondents).

Key legal issues

#
01

Whether the intended appeal was arguable

Holding

The intended appeal was arguable and not frivolous, because the suit was struck out for want of prosecution and jurisdictional issues were raised.

Reasoning

Applying the settled Rule 5(2)(b) principles, the Court found that given the suit in the High Court had been struck out for want of prosecution and issues of jurisdiction had been raised, the first limb of the test - that the appeal is not frivolous - was satisfied. The Court did not go into the merits, only whether the appeal deserved the Court's consideration.

p. 4
02

Whether there was anything to stay and whether the appeal would be rendered nugatory

Holding

The application failed on the nugatory limb and because the bills had not been taxed; there was nothing to stay and the application was premature and misconceived.

Reasoning

The Court weighed the competing claims of the parties, noting that the various bills of costs had not yet been taxed and that counsel had submitted there was no threat of execution. Since no taxation had occurred, no order capable of execution existed. The Court therefore held the application premature and misconceived, balancing hardship under the overriding objective rather than assessing the merits.

p. 5

Legal principles established

#
  • An applicant under Rule 5(2)(b) must satisfy both limbs - arguability and nugatory-ness - and satisfying only one limb does not avail the applicant.
  • An arguable appeal need not be one that must succeed; it need only be deserving of the Court's consideration.
  • Where no decree has been drawn or bill taxed, an application for stay of execution is premature because there is nothing in existence capable of being stayed.

Court orders

#
  1. 1.Application for stay of execution dismissed as premature and misconceived
  2. 2.Costs awarded to the 1st, 2nd, 3rd, 13th and 14th respondents, who were present before the Court

Authorities

#

Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Appellate Jurisdiction ActSections 3A and 3B
  • Advocates Remuneration Order, 1997Paragraph 1(b), Schedule VI; Rule 11
  • Civil Procedure RulesOrder XXI

Cases cited (11)

  • Republic vs Kenya Anti-Corruption Commission & 2 Others
    (2009) KLR 31
  • Reliance Bank Ltd vs Norlake Investments Ltd
    (2002) 1 EA 227
  • Githunguri vs Jimba Credit Corporation Ltd & Others (No. 2)
    1988 KLR 828
  • Wardpa Holdings Ltd & Others vs Emmanuel Waweru Mathai & HFCK
    Civil Appeal No. 72 of 2011 [unreported]
  • Dennis Mogambi Mongare vs Attorney General & 3 Others
    Civil Application No. Nai 265 of 2011 [UR 175/2011]
  • Oraro and Rachier Advocates vs Cooperative Bank of Kenya Limited
    Civil Application No. Nai 358 of 1999
  • African Safari Club Limited vs Safe Rentals Limited
    Nairobi Civil Appeal [Application] No. 53 of 2010 (unreported)
  • Premchand Raichand Ltd and Another vs Quarry Services of East Africa Ltd and Another No. 3
    (1972) E.A. 162
  • Exclusive Estates Ltd vs Kenya Posts and Telecommunications Corporation and Another
    No. 62 of 2004
  • Eastland Hotel Limited vs Wafula Simiyu & Co. Advocates
    No. 13 of 2014
  • Orbit Chemicals Industries
    Misc Civil Application No. 162 of 2006
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 15 of 2000
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules; Sections 3A and 3B of the Appellate Jurisdiction Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Royal Media Services v Telcom Kenya Limited & 13 others [2015] KECA 519 (KLR)", Case Analysis (2015). Civil Application No. NAI 70 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/519/eng@2015-07-10

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