Anti-Counterfeit Authority v Francis John Wanyange & 4 others [2019] KECA 359 (KLR)
The bottom line
#Kenya's Court of Appeal paused the release of seized LPG cylinders until an appeal is heard, but only on a strict 45-day filing condition.
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, if successful, will be rendered nugatory
Key legal issues
#Whether the intended appeal is arguable
The intended appeal is not frivolous; the question whether the High Court Judge failed to inquire whether the respondents were licensed to deal in the gas cylinders is arguable.
The Court reiterated that an arguable appeal need not be one that must succeed, but one deserving of full argument. The applicant's contention that the Judge failed to consider whether the respondents held a licence under the Energy (Liquified Petroleum Gas) Regulations, 2009 raised a question fit for the Court's consideration on the intended appeal, satisfying the first limb of the Rule 5(2)(b) test.
Whether the intended appeal would be rendered nugatory if stay is not granted
Yes; if the LPG cylinders are released before the appeal is determined, the appeal would be rendered academic as the cylinders would be out of the applicant's reach.
Applying the nugatory principle, the Court found that release of the full LPG cylinders, the subject matter of the dispute, would be irreversible in practical terms and would place them beyond the applicant's reach. Relying on the preservation principle, the circumstances warranted preservation of the cylinders pending hearing and determination of the intended appeal.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy two principles: the appeal or intended appeal must be arguable, and the success of the appeal must be rendered nugatory unless the stay or injunction is granted.
- An arguable appeal need not necessarily succeed; it is one that ought to be argued fully before the Court or one deserving of the Court's consideration.
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party.
- The object of Rule 5(2)(b) is the preservation of the subject matter of the appeal.
Court orders
#- 1.An order staying execution of the judgment and decree of the High Court dated 23rd November 2018 pending the hearing and determination of the intended appeal
- 2.The applicant to file and serve its memorandum and record of appeal within 45 days from the date of delivery of the ruling, failing which the stay orders shall stand discharged
- 3.In the event of default, the application dated 18th April 2019 to stand dismissed with costs to the 1st and 2nd respondents
- 4.The 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 Nairobi (Constitutional and Human Rights Division)
- Petition No. 320 of 2015
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and 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.
We accordingly allow the application in terms of prayer 3 thereof and hereby grant an order staying execution of the judgment and decree of the High Court dated 23rd November 2018 pending the hearing and determination of the intended appeal.
We further direct that the applicant shall file and serve its memorandum and record of appeal within 45 days from the date of delivery of this ruling, failing which the orders granted herein shall stand discharged.
The costs of the application shall abide by the outcome of the intended appeal.
For an applicant to succeed he must not only show his appeal or intended appeal is arguable, but also that unless the court grants him an injunction or stay as the case may be, the success of the appeal will be rendered nugatory.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anti-Counterfeit Authority v Francis John Wanyange & 4 others [2019] KECA 359 (KLR)", Case Analysis (2019). Civil Application No. 127 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/359/eng@2019-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.