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Court of AppealAllowedCivil Application No. 27 of 2016 (UR No. 13/2016)· [2016] KECA 327 (KLR)

Executive Committee - Kisii County & 2 others v Masosa Construction Company Ltd & another [2016] KECA 327 (KLR)

Court of Appeal
29 July 2016
Philomena Mbete MwiluP. M. MwiluSKS. Gatembu KairuAMA. K. Murgor
1,800 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 paused a contempt ruling that threatened Kisii County officials with arrest over an unpaid construction debt, pending their appeal.

What this practically means

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Executive summary

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The applicants, organs of the Kisii County Government, sought a stay of execution under Rule 5(2)(b) of the Court of Appeal Rules of a High Court ruling (Karanja, J., 5th April 2016) which cited them for contempt of court for failing to comply with an order of mandamus compelling them to pay Masosa Construction Company Ltd Kshs. 8,464,699.05, a residual judgment debt originally owed by the defunct Kisii Municipal Council. The High Court had given the applicants seven days to expunge the contempt, in default of which a warrant of arrest would issue against the Governor as chief executive. The applicants argued the intended appeal was arguable on the governing statutory regime for liabilities of defunct local authorities, budgetary and Controller of Budget approval requirements, and non-service of the mandamus order. The respondents countered that the applicants never appealed the mandamus order and that service was proved. Applying the settled two-limb test - an arguable appeal and nugatory-ness - the Court found the draft memorandum of appeal raised non-frivolous issues and was satisfied the discretion under Rule 5(2)(b) should be exercised in the applicants' favour. It allowed prayer 3, staying execution of the contempt ruling pending the intended appeal, directed filing of the record within 30 days failing which the stay lapses and the motion stands dismissed with costs to the respondents, ordered a priority hearing, and directed that costs of the application abide the outcome of the appeal. This ruling binds the High Court and subordinate courts on the applicable Rule 5(2)(b) principles.

Key legal issues

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Whether the applicants met the Rule 5(2)(b) threshold for stay pending appeal

Holding

The Court found the intended appeal arguable and satisfied that the applicants had made out a case for the exercise of its discretion, and stayed execution of the High Court contempt ruling pending the intended appeal.

Reasoning

Applying the settled two-limb test from Ishmael Kagunyi Thande v HFCK, the Court found the draft memorandum of appeal raised weighty matters (statutory regime, service of the mandamus order, liability of county government) rendering the appeal non-frivolous. Satisfied on both limbs, it exercised its discretion to stay the contempt ruling, conditioned on filing the record within 30 days, with priority hearing and costs in the application abiding the appeal.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate both that the appeal (or intended appeal) is arguable and that it will be rendered nugatory if stay or injunction is not granted.
  • An arguable appeal is one deserving of the Court's consideration, not one that must necessarily succeed.
  • The object of Rule 5(2)(b) is preservation of the subject matter of the appeal to ensure just and effective determination of appeals.

Court orders

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  1. 1.Stay of execution of the ruling and order of the High Court of Kenya at Kisii in Misc. Civil Application No. 72 of 2015 pending the hearing and determination of the intended appeal
  2. 2.Applicants to file and serve the memorandum and record of appeal within 30 days from delivery of the ruling, failing which the stay shall automatically lapse and the notice of motion dated 8th April 2016 shall stand dismissed with costs to the respondents
  3. 3.The appeal to be heard on a priority basis
  4. 4.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Rules of the Court (Court of Appeal Rules)Rule 5(2)(b)
  • Judicature ActSection 5
  • Constitution of Kenya
  • Intergovernmental Relations Act

Cases cited (3)

  • Ishmael Kagunyi Thande v HFCK
    Civil Application No. Nai 157 of 2006
  • Dennis Mogambi Mong’are vs. Attorney General & others
    [2012] eKLR
  • Equity Bank Limited v West Link Mbo Limited
    Civil Application No. Nai 78 of 2011
On appeal from
High Court of Kenya at Kisii
Miscellaneous Civil Application No. 72 of 2015
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, "Executive Committee - Kisii County & 2 others v Masosa Construction Company Ltd & another [2016] KECA 327 (KLR)", Case Analysis (2016). Civil Application No. 27 of 2016 (UR No. 13/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/327/eng@2016-07-29

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