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Court of AppealAllowedCivil Application No. 294 of 2014· [2015] KECA 974 (KLR)

Commissioner of Mines & Geology & 2 others v Stema Alloys Enterprise Ltd.

Court of Appeal
6 February 2015
RNR. N. NambuyeWKW. KaranjaWilliam OukoW. Ouko
1,741 words in judgment
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The bottom line

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Kenya's Court of Appeal paused execution of a mining judgment because the appeal would be worthless if the ore left the country or officials went to jail.

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 (Nambuye, Karanja and Ouko, JJ.A) on a notice of motion by the Commissioner of Mines and Geology, the Cabinet Secretary for Mining and the Attorney General seeking stay of execution of the High Court judgment (Ogola, J., 24th October 2014, H.C.C. No. 375 of 2014) pending an intended appeal. The High Court had ordered the applicants to assess export permit fees and royalty payable by Stema Alloys Enterprise Ltd, and upon payment to release an impounded consignment of crushed malachite ore destined for South Korea, while refusing general damages and awarding the respondent 80% of costs. Applying the settled twin principles under Rule 5(2)(b) of the Court of Appeal Rules - arguability and nugatory-ness - the Court held the intended appeal was not frivolous, citing grounds including whether judgment could properly issue despite lack of an export permit and whether a mandatory injunction was justified. On the second limb, the Court found the appeal would be rendered nugatory because execution would remove the consignment from the jurisdiction to a foreign third party, and more fundamentally because the applicants faced imminent committal to civil jail under the very decree they intended to challenge. Emphasising that deprivation of personal liberty is a serious constitutional issue that cannot be reversed once suffered, the Court granted a stay of all execution-related proceedings, conditioned on the applicants filing the intended appeal within thirty days failing which the stay stands vacated. Costs were reserved to the intended appeal. The ruling binds the High Court on the twin principles for Rule 5(2)(b) applications.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court found the intended appeal not frivolous, identifying arguable grounds including entitlement to judgment despite lack of export permit and propriety of the mandatory injunction.

Reasoning

The Court examined the draft memorandum of appeal and identified grounds such as whether the Judge misdirected himself in granting judgment despite lack of an export permit, whether the 1st applicant could release the consignment, whether impounding was justified, and whether a mandatory injunction could properly issue. On those grounds it concluded the appeal was not frivolous.

p. 3
02

Whether the intended appeal would be rendered nugatory if stay is refused

Holding

The Court held the appeal would be rendered nugatory because the consignment would be exported out of the jurisdiction and the applicants faced imminent committal to civil jail under the very decree they intended to challenge.

Reasoning

The Court identified two events rendering the appeal nugatory: execution would see the consignment removed from the court's jurisdiction to a foreign third party, and the applicants faced imminent jail for contempt of the decree under challenge. It stressed that deprivation of personal liberty is a serious constitutional issue that cannot be reversed once suffered.

p. 3

Legal principles established

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  • For an application under Rule 5(2)(b) to succeed, the applicant must satisfy the twin principles that the intended appeal is arguable and that it would be rendered nugatory if stay is refused.
  • An appeal is rendered nugatory if its outcome would be worthless, futile or invalid, or if the successful appellant cannot be restored substantially to his former position.
  • Where personal liberty is threatened in a case where the applicant has challenged or intends to challenge on appeal the very basis of such threats, the court will be inclined to grant a stay.

Court orders

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  1. 1.Stay of all execution-related proceedings and orders consequent upon the decree in Nairobi HCCC No. 375 of 2014 until the intended appeal is lodged and determined
  2. 2.Applicants to file the intended appeal within thirty (30) days from the date of the ruling, failing which the stay shall stand vacated without further orders
  3. 3.Costs to be in the intended appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 82(2)
  • Mining Act

Cases cited (2)

  • Stanley Kangethe Kinyanjui V. Tony Keter & 2 others
    Civil Application No. 31 of 2012

    Twin principles for grant of stay under Rule 5(2)(b): arguability and nugatory-ness.

  • Reliance Bank Ltd. V. Norlake Investments Ltd
    (2002) 1 EA 27

    Definition of when an appeal is rendered nugatory.

On appeal from
High Court
H.C.C. No. 375 of 2014
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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Later judgments citing this (3)

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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, "Commissioner of Mines & Geology & 2 others v Stema Alloys Enterprise Ltd.", Case Analysis (2015). Civil Application No. 294 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/974/eng@2015-02-06

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