Patrick Mukiri Kabundu v Executive, Tourism Development & Culture, Mombasa County & 22 others [2016] KECA 632 (KLR)
The bottom line
#The Court of Appeal refused to pause Mombasa's liquor licensing law, confirming that a dismissed petition is a 'negative order' that cannot be stayed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, if the orders sought are not granted, the intended appeal will be rendered nugatory
- 3.Whether a negative order dismissing a petition is capable of stay under rule 5(2)(b)
Key legal issues
#Scope of reliefs available under rule 5(2)(b)
Rule 5(2)(b) is confined to stay of execution, stay of proceedings and injunction; other reliefs require a different jurisdiction.
The applicant sought four reliefs, including staying an Act, reinstating an interim order and staying all county prosecutions. The Court held it could only properly grant a stay of execution of the High Court judgment under rule 5(2)(b); any other relief would require invoking a different jurisdiction of the Court.
Whether a negative order can be stayed
A negative order - such as a mere dismissal of a petition - is not capable of execution and cannot be stayed under rule 5(2)(b).
Relying on Exclusive Estates Ltd and other decisions, the Court reiterated that stay under rule 5(2)(b) contemplates a decree or order capable of execution under section 38 of the Civil Procedure Act. The dismissal of the petition by Emukule, J. was a negative order requiring nothing of the applicant, so no stay lay.
Arguability of the intended appeal
The intended appeal was arguable; the grounds on public participation, prosecutorial powers of the county government, and retrospectivity were not frivolous.
The Court was satisfied prima facie that the grounds raised - absence of public participation under Article 10, violation of Article 157 on prosecution powers, and the alleged retrospective commencement of the Act - were bona fide and arguable, though arguability alone does not entitle an applicant to stay; both limbs must be satisfied.
Whether the appeal would be rendered nugatory
The nugatory-ness limb failed: the balance of hardship favoured the respondents given the operation of the devolved county government and the availability of damages.
The Court weighed the respective hardship. Any fine or conviction could potentially be compensated, and the Act had been in force and observed for some time. The importance of the devolved system meant its working should not be unduly obstructed where damages could compensate the applicant.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both limbs - arguability and nugatory-ness - and satisfying only one is insufficient
- The Court of Appeal will not stay a negative order which does not require the applicant to do or abstain from doing anything
- Jurisdiction under rule 5(2)(b) is original and discretionary; its exercise is not an appeal from, nor dependent on, any order made by the High Court
- Only one bona fide arguable ground is required to demonstrate an arguable appeal; the applicant need not establish a multiplicity of grounds
- In rule 5(2)(b) applications the Court must consider the respective hardship and inconvenience each party stands to suffer, and the working of devolved government should not be unduly obstructed where a party may be adequately compensated by damages
Court orders
#- 1.The application dated 26th October 2015 is dismissed
- 2.Costs of the application to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Misc. App. No. 27 of 2015 (consolidated with Petition No. 18 of 2015)
- Jurisdiction invoked
- Rules 5(2)(b) and 42(1) of the Court of Appeal Rules
- Consolidated with
- Petition No. 18 of 2015 (High Court, Mombasa), consolidated with Misc. App. No. 27 of 2015
Relief refused
#Stay of execution of the Mombasa County Liquor Licensing Act, 2014
Rule 5(2)(b) is confined to stay of execution, stay of proceedings and injunction; staying implementation of the Act would obstruct the devolved County Government and the harm could be compensated by damages
Reinstatement of the High Court interim order dated 30th July 2015
The interim order was limited in operation to the period between hearing and judgment and was duly spent and discharged upon delivery of the judgment dismissing the petition
Stay of all prosecutions carried out by county prosecutors in Mombasa County
No basis was established for such a blanket order; it is not a relief properly grantable under rule 5(2)(b)
Costs
Costs of this application shall abide the outcome of the intended appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
To be entitled to a relief under rule 5(2) (b), the applicant must satisfy the Court that the appeal is arguable and unless the relief sought is granted, the appeal will be rendered nugatory if it is ultimately successful.
Authorities abound that under rule 5 (2) (b) this Court will not stay negative orders which do not require the applicant to do or abstain from doing anything.
The critical importance of the newly adopted devolved system of government in our constitutional system impels us to conclude that all things being equal, its working should not be unduly obstructed or impeded
Accordingly the application is hereby dismissed.
Costs of this application shall abide the outcome of the intended appeal.
Issues in the judgment
#The judgment's substantive discussion refers to a stay of the 'judgment of Emukule, J. dated 30th July 2015', while the relief sought and the heading describe a judgment dated 13th October 2015; the two dates appear inconsistently
The citation for Stanley Kangethe Kinyanjui v. Tony Ketter is printed as 'CA No 31 0f 2012', containing an apparent typographical error
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Mukiri Kabundu v Executive, Tourism Development & Culture, Mombasa County & 22 others [2016] KECA 632 (KLR)", Case Analysis (2016). Civil Application No. 59 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/632/eng@2016-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.