Kenya Bureau of Standards v Landmark Freight Services Limited & 4 others [2019] KECA 281 (KLR)
The bottom line
#Kenya's Court of Appeal blocked the release of contested imported sugar, ruling public food safety outweighs a court order until the appeal is heard.
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 application is incompetent for lack of a notice of appeal filed within the prescribed time
- 2.Whether the intended appeal is arguable
- 3.Whether the intended appeal would be rendered nugatory if stay of execution is not granted
Key legal issues
#Whether a stay application under Rule 5(2)(b) is defeated by a late notice of appeal
No. The validity of a notice of appeal is governed by Rules 74, 80 and 84; a Rule 5(2)(b) application does not require a valid notice of appeal, and there is a formal procedure to strike out an invalid notice.
Following Industrial Credit Bank Ltd v Aquinas Francis Wasike, the Court held that Rule 5(2)(b) simply requires that a notice of appeal has been lodged in accordance with rule 74; Rule 74 does not speak of a valid notice of appeal. The validity or otherwise of a notice of appeal is determined under Rule 80 under which it may be struck out, and Rule 84 provides the formal procedure for dealing with validity. The Court found no prejudice occasioned to the 1st respondent.
Whether the intended appeal is arguable
Yes. It is arguable whether the Judge could take evidence after delivering judgment, whether he erred in directing release of sugar the applicant found unfit, and whether the sugar had expired during litigation.
The Court reviewed the nine intended grounds and found at least three arguable: the propriety of taking evidence of a witness after judgment had been delivered; the direction to release sugar notwithstanding the applicant's laboratory finding it unfit for consumption; and the question whether the sugar had expired during the pendency of the litigation. Since a single arguable ground suffices, the first limb was satisfied.
Whether the appeal would be rendered nugatory if stay is not granted
Yes. Public interest in food safety is paramount; release of the expired sugar before determination of the appeal would render it academic and expose the public to grave health risks.
Given contradictions on the state of the sugar consignment, the Court held public good and interest paramount. If the sugar were released before the intended appeal was heard, the appeal would be an academic discourse, and the risk to the public should the sugar prove unfit for human consumption was too grave to contemplate. The applicant also faced the risk of being cited for contempt if it released the sugar and the appeal later succeeded.
Legal principles established
#- On a Rule 5(2)(b) application, the Court is concerned only with arguability of the intended appeal and whether it would be rendered nugatory; the validity of the notice of appeal is not for determination at that stage, as Rule 74 does not require a valid notice of appeal and validity is dealt with under Rule 80/84.
- Even a single arguable ground suffices to satisfy the arguability limb of the Rule 5(2)(b) test.
Court orders
#- 1.An order of stay of execution of the ruling and order of 29th July, 2019 pending the hearing and determination of the appeal
- 2.The applicant's application in Civil Application No. 298 of 2019 to be listed immediately before a single Judge
- 3.The main appeal to be filed and served within thirty (30) days from the date of the ruling, if not already filed and served
- 4.Costs to be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- Constitutional Petition No. 290 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
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.
All the Court is concerned with under Rule 5 (2) (b), as we have already said, is the arguability of the appeal or the intended appeal and the nugatory aspect of the appeal or intended appeal if the stay is not granted and the appeal or the intended appeal were to eventually succeed
For the purpose of this application, even a single arguable ground is enough.
Accordingly, there will be and we hereby grant an order of stay of execution of the ruling and order of 29 th July, 2019 pending the hearing and determination of the appeal.
Issues in the judgment
#The ruling refers throughout to 'the orders of 29th July, 2019' as the decision under appeal, but earlier text states the judgment was delivered and the ruling of 29th July 2019 arose from proceedings of 27th June 2019; the date '24th June, 2019' for the mention and the 29th July ruling date are internally inconsistent with the sequence of events narrated.
The judgment header spells the third respondent as 'THE HON. ATTORNEY GENRAL' (misspelling of Attorney General).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Bureau of Standards v Landmark Freight Services Limited & 4 others [2019] KECA 281 (KLR)", Case Analysis (2019). Civil Application No. 288 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/281/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.