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Court of AppealStruck OutCivil Application No. NAI. 204 of 2015 (UR 167/2015)· [2016] KECA 490 (KLR)

Bahati Women Company Limited v Stephen Karimi Muruga & 5 Others

Court of Appeal
16 June 2016
2,611 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 struck out a stay application because the notice of appeal did not target the orders the company wanted stayed.

What this practically means

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Executive summary

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This was a rule 5(2)(b) application by Bahati Women Company Limited seeking a stay of execution of a consent order dated 8th April 2011 and a resultant decree issued on 14th June 2011 in Nakuru H.C.C.C No. 223 of 2004, pending an intended appeal against the ruling of Omondi, J delivered on 29th January 2015 dismissing the applicant's application to set aside that consent and decree. The 1st and 2nd respondents opposed, arguing the application was incompetent: the only notice of appeal filed was against the 2015 ruling, the orders sought to be stayed were not positive orders capable of execution, and no notice of appeal had been filed against the consent order itself. The Court restated the settled parameters of its rule 5(2)(b) jurisdiction: it is original, independent and discretionary; it presupposes a lodged notice of appeal; and it requires demonstration of both an arguable appeal and that the appeal will be rendered nugatory absent a stay. A single bona fide arguable point suffices for the first limb, and nugatory effect is judged by whether what is sought to be stayed is reversible or whether damages would reasonably compensate the aggrieved party. Applying these principles, the Court held that its jurisdiction vests only where the application is anchored on a notice of appeal against the very orders sought to be stayed. Here the notice of appeal targeted the 2015 ruling, not the 2011 consent order and decree. Citing the Owners of the Motor Vessel "Lillian S" doctrine, the Court concluded it lacked jurisdiction, and downed its tools by striking out the application with costs to the respondent.

Key legal issues

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Whether the rule 5(2)(b) jurisdiction could be exercised where the notice of appeal did not target the orders sought to be stayed

Holding

It could not. The notice of appeal was against the ruling of 29th January 2015 dismissing the application to set aside the consent, whereas the stay sought was of the consent orders of 13th May/14th June 2011; the Court therefore lacked jurisdiction and struck out the application.

Reasoning

The Court held that its rule 5(2)(b) jurisdiction vests only where the application is anchored on a notice of appeal against the orders sought to be stayed. It is common ground the notice filed was against the 2015 ruling. Once lack of jurisdiction became apparent, the Court was obliged to down its tools and strike out the incompetent application, with costs to the respondent. Counsel's authorities on negative orders and the requirement that a notice of appeal match the decision appealed from supported this outcome.

p. 4
02

The settled parameters for relief under rule 5(2)(b)

Holding

The jurisdiction is original, independent and discretionary; it requires the applicant to demonstrate that the appeal is arguable (a single bona fide arguable point suffices) and that it will be rendered nugatory if stay is refused; both limbs must be shown.

Reasoning

The Court restated the crystallised twin principles: the intended appeal need not succeed but must raise a bona fide issue worth of consideration; one arguable point suffices. Nugatory effect is assessed by whether what is sought to be stayed is reversible or whether damages would reasonably compensate the aggrieved party. Both limbs must be demonstrated, and the jurisdiction arises only where a notice of appeal has been lodged.

p. 3

Legal principles established

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  • An application under rule 5(2)(b) must be anchored on a notice of appeal demonstrating the applicant's intention to appeal against the specific orders sought to be stayed
  • Both limbs of the rule 5(2)(b) test - arguability and nugatory - must be demonstrated before relief can issue
  • A single arguable point is sufficient to satisfy the first limb of the rule 5(2)(b) test
  • A court that lacks jurisdiction must down its tools
  • A dismissal order is a negative order leaving nothing positive capable of execution

Court orders

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  1. 1.The application under rule 5(2)(b) is struck out with costs to the respondent
On appeal from
High Court of Kenya at Nakuru
Nakuru H.C.C.C No. 233 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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Cite this brief

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Cite this brief

Caselaw, "Bahati Women Company Limited v Stephen Karimi Muruga & 5 Others", Case Analysis (2016). Civil Application No. NAI. 204 of 2015 (UR 167/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/490/eng@2016-06-16

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