Shree Haree Builders Limited v Bazara Alex Tabulo & another [2017] KECA 223 (KLR)
The bottom line
#Kenya's Court of Appeal halted arbitration mid-stream, confirming courts can stop arbitral proceedings pending an appeal when continuing would make that appeal meaningless.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable under Rule 5(2)(b)
The Court found the intended appeal arguable, including on whether the issue of jurisdiction or prejudice should be heard and determined first, while avoiding any merits determination.
The Court applied the settled test that an arguable ground need not succeed but must not be frivolous. It identified grounds concerning bias, the arbitrator's jurisdiction, and the sequencing of the recusal and jurisdiction applications, and was satisfied that at least one ground was arguable without delving into the merits of the appeal.
Whether the intended appeal would be rendered nugatory if stay was not granted
The Court found the nugatory limb satisfied because the arbitral proceedings, if allowed to continue, would not be reversible on a successful appeal.
Applying Stanley Kang'ethe Kinyanjui v Tony Keter, the Court reasoned that nugatory status depends on whether what is sought to be stayed is reversible or compensable in damages. Since the applicant sought to stop the arbitrator proceeding on grounds of lack of independence/partiality, allowing the arbitral proceedings to conclude would render a successful appeal nugatory.
Legal principles established
#- Under Rule 5(2)(b) the Court exercises original and discretionary jurisdiction, and an applicant must satisfy the twin tests of an arguable appeal and that the appeal will be rendered nugatory absent stay.
- A single non-frivolous ground suffices to establish arguability on a Rule 5(2)(b) application.
Court orders
#- 1.Stay of the arbitral proceedings and/or any further proceedings before the 2nd respondent (arbitrator) pending the lodging, hearing and determination of the applicant's intended appeal
- 2.Costs of the application awarded in the appeal
- On appeal from
- High Court of Kenya, Nairobi
- Miscellaneous Application No. 489 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shree Haree Builders Limited v Bazara Alex Tabulo & another [2017] KECA 223 (KLR)", Case Analysis (2017). Civil Application No. NAI 135 of 2016 (UR 106/2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/223/eng@2017-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.