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Court of AppealDismissedCivil Application No. Nai. 36 of 2013· [2016] KECA 670 (KLR)

Coast Water Services Board v Engineer Iddi Ali Mwasina [2016] KECA 670 (KLR)

Court of Appeal of Kenya
8 April 2016
1,207 words in judgment
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The bottom line

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The Court of Appeal dismissed Coast Water Services Board's application because it bypassed required procedure, including filing a Notice of Appeal before seeking a stay.

What this practically means

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Executive summary

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Coast Water Services Board moved the Court of Appeal at Nairobi by notice of motion dated 12th February 2013 seeking stay of execution of a judgment of Wasilwa J of the Industrial Court delivered on 23rd October 2012 in Industrial Cause 1332 of 2011, and leave to appeal out of time. The respondent neither filed papers nor appeared. The Court identified a threshold procedural defect: Rule 4 applications for extension of time must, under Rule 53(1), first be placed before a single judge in chambers, who alone may adjourn them to the full Court, with Rule 55 then affording a reference as a second opportunity. The application had therefore reached the full Court prematurely and could not lawfully be entertained. Independently, Rule 5(2)(b) presupposes a filed Notice of Appeal under Rule 75; none had been filed, rendering the motion unprocedurally brought. The Court further held that an applicant under Rule 5(2)(b) must simultaneously establish the twin prerequisites of an arguable, non-frivolous intended appeal and that the appeal would be rendered nugatory absent stay, and noted that counsel's submissions had wrongly rested on Giella v Cassman Brown temporary-injunction principles rather than the appellate test drawn from Githunguri v Jimba Credit Corporation and J.K. Industries. The motion was dismissed with costs, the Court also apologising for a delay caused by the judges' files being misfiled in the archives before delivery.

Key legal issues

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01

Correct forum for Rule 4 extension-of-time applications

Holding

Such applications must go first to a single judge; the full Court has no jurisdiction to hear them at first instance

Reasoning

Rule 53(1) mandates that every application, save those expressly excepted, be heard by a single judge, who may adjourn it to the Court. Rule 55 provides the aggrieved party a reference to the full Court as a second opportunity. The present Rule 4 application, not having been considered by a single judge, was prematurely and unlawfully before the full Court.

p. 2
02

Effect of failure to file a Notice of Appeal on a Rule 5(2)(b) application

Holding

The filing of a Notice of Appeal is a prerequisite; without it the motion is unprocedurally brought and no orders may issue

Reasoning

Rule 5(2)(b) applies only in civil proceedings where a notice of appeal has been lodged in accordance with Rule 75. The applicant admitted that no Notice of Appeal was ever filed. That omission, coupled with the wrong forum, made the motion a non-starter and left the Court unable to grant the stay or the extension sought.

p. 3
03

Twin prerequisites for stay pending intended appeal

Holding

The applicant must establish both an arguable appeal and that the appeal would be rendered nugatory absent stay; temporary-injunction principles do not apply

Reasoning

Counsel's submissions were premised on Giella v Cassman Brown injunction principles (irreparable loss), which the Court held is not the relevant test in this Court. The governing test derives from Githunguri v Jimba Credit Corporation and J.K. Industries: arguability plus nugatory-avoidance, established simultaneously. On conjectural grounds alone the applicant could not satisfy these.

p. 3

Legal principles established

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  • Applications under Rule 4 for extension of time must in the first instance be made to a single judge in chambers, who alone may adjourn the application for determination by the full Court; the full Court cannot lawfully entertain such an application at first instance
  • An application for stay of execution pending an intended appeal under Rule 5(2)(b) is incompetent unless a Notice of Appeal has been filed
  • An applicant under Rule 5(2)(b) must simultaneously establish that the intended appeal is arguable and that, if successful, it would be rendered nugatory absent a stay or injunction; injunction principles are inapplicable

Court orders

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  1. 1.The application is dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 53(1)
  • Court of Appeal RulesRule 55(1), 55(2)
  • Court of Appeal RulesRule 75
  • Court of Appeal ActSection 5

Cases cited (6)

  • Oraro and Rachier Advocates v Co-operative Bank of Kenya Limited
    [1999] LLR 1118
  • Clarkson Notcutt (Insurance Broker) Ltd. v South Coast Fitness Center
    Civil Application No. Nai. 204 of 1995
  • Trust Bank Ltd. and Anr v Investech Bank Ltd. and Others
    [1999] LLR 1124
  • Githunguri v Jimba Credit Corporation Ltd (no. 2)
    (1988) KLR 838
  • J. K. Industries Ltd. vs Kenya Commercial Bank Ltd
    [1982 – 88] IKAR 1088
  • Giella v Cassman Brown
    (1973) EA 358
On appeal from
Industrial Court of Kenya at Nairobi
Industrial Cause 1332 of 2011
Jurisdiction invoked
Rule 4 and Rule 5(2)(b) of the Court of Appeal Rules (application for extension of time and stay of execution pending intended appeal)

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, "Coast Water Services Board v Engineer Iddi Ali Mwasina [2016] KECA 670 (KLR)", Case Analysis (2016). Civil Application No. Nai. 36 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/670/eng@2016-04-08

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