United Millers Limited v Kenya Bureau of Standards & 5 others [2019] KECA 378 (KLR)
The bottom line
#The Court of Appeal stopped Kenyan authorities from destroying United Millers' seized sugar until its appeal is decided, but also refused to release it.
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 strangely framed prayers could properly be entertained as an application for injunctive relief under Rule 5(2)(b)
- 2.Whether the intended appeal is arguable (not frivolous)
- 3.Whether, if the relief sought is not granted, the intended appeal would be rendered nugatory
Key legal issues
#Whether the mislabelled prayers could be treated as an application for injunction under Rule 5(2)(b)
Yes. Though strangely framed, the applicant was properly seeking injunctive orders pending the intended appeal, and stay of execution, stay of further proceedings and injunction are all conservatory orders attracting the same consideration.
The Court observed that the applicant, whose motion had been dismissed in the High Court, was being cautious in framing its prayers: applying for stay of execution of the decree would have been futile. The authorities cited by the applicant confirmed the relief sought was injunctive. The Court held that stay of execution, stay of further proceedings and injunction are all, generally speaking, conservatory orders, and the consideration is the same whether the application is for stay or injunction. The respondent's objection that the prayers would compel release of the consignment was noted but the Court confined itself to an order maintaining the status quo.
Whether the intended appeal is arguable
Yes. From the ten grounds advanced, including the failure to find that the Standards Tribunal's jurisdiction did not extend to decisions made under the Multi-Agency Protocol, the intended appeal is not frivolous.
The Court reviewed the ten arguable grounds in paragraph 13 of the supporting affidavit, including the contention that the Judge erred in failing to find that section 11 of the Fair Administrative Action Act vests jurisdiction in the High Court to grant the reliefs sought. Applying the settled principle that a single bona fide arguable ground suffices, the Court was persuaded the intended appeal is not frivolous, satisfying the first limb of the twin test under Rule 5(2)(b).
Whether the intended appeal would be rendered nugatory if the relief sought is not granted
Yes. If the sugar is destroyed and the appeal subsequently succeeds, the appeal would be futile; the Court must guard against action that renders the appeal otiose.
The Court applied the nugatory-principle test: whether what is sought to be stopped is reversible, and if not, whether damages would reasonably compensate the aggrieved party. Destruction of 29,714 bags of sugar would be irreversible and no damages would restore the position. Relying on the Econet Wireless principles cited with approval in local decisions, the Court held that where the subject matter may be destroyed and there could be no return to the status quo, conservatory relief ought to issue, satisfying the second limb of the twin test.
Legal principles established
#- An application under Rule 5(2)(b) must satisfy the twin principles that the intended appeal is not frivolous and that, absent a stay or injunction, the appeal if successful would be rendered nugatory.
- Stay of execution, stay of further proceedings and injunction are generally speaking all conservatory orders, and whether an application is for stay or injunction the consideration is the same.
- It is sufficient for an applicant under Rule 5(2)(b) to raise a single bona fide arguable ground of appeal.
- The nugatory test asks whether what is sought to be stayed or stopped is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party; the Court must guard against any action rendering the appeal otiose.
Court orders
#- 1.That status quo obtaining at the time of hearing the application be maintained: the applicant's consignment of sugar will not be released to it and the respondents will not destroy it pending the hearing and determination of the intended appeal
- 2.That costs will be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- Judicial Review No. 396 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for conservatory order pending an intended appeal)
Relief refused
#Release of the seized consignment of sugar to the applicant
Under Rule 5(2)(b) the Court can only grant a stay of execution, an injunction or stay of further proceedings; the Court limited itself to maintaining the status quo rather than releasing the consignment
Costs
Costs will be in 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.
The applicant has met the test for the grant of an injunction under Rule 5(2)(b) and the application accordingly succeeds.
the order that commends itself to us, bearing in mind what we said at the beginning regarding the prayers, is that status quo obtaining at the time of hearing this application be maintained.
the applicant’s consignment of sugar will not be released to it and the respondents, on the other hand will not destroy it pending the hearing and determination of the intended appeal.
For an application brought under Rule 5(2)(b) to succeed it must satisfy the twin guiding principles, that the intended appeal is not frivolous and that unless a stay or an injunction is granted, the appeal or intended appeal, if successful, would be rendered nugatory.
In any case stay of execution, stay of further proceedings and injunction are, generally speaking, all conservatory orders.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "United Millers Limited v Kenya Bureau of Standards & 5 others [2019] KECA 378 (KLR)", Case Analysis (2019). Civil Application No. 153 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/378/eng@2019-08-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.