Royal Media Services v Telcom Kenya Limited & 13 others [2015] KECA 519 (KLR)
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
#Key legal issues
#Whether the intended appeal was arguable
The intended appeal was arguable and not frivolous, because the suit was struck out for want of prosecution and jurisdictional issues were raised.
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.
Whether there was anything to stay and whether the appeal would be rendered nugatory
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.
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.
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.Application for stay of execution dismissed as premature and misconceived
- 2.Costs awarded to the 1st, 2nd, 3rd, 13th and 14th respondents, who were present before the Court
- 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.
- Alldean Satellite Networks (K) Ltd v Kenya Anti-Corruption Commission & Another (Ex parte Applicant)[2008] KEHC 1935 (KLR)30 Jun 2008
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.