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Court of AppealDismissedCivil Application No. 212 of 2020· [2020] KECA 263 (KLR)

Captain Motorcycles Manufacturing Co. Ltd v Jane Muthoni Mberere & another [2020] KECA 263 (KLR)

Court of Appeal
23 October 2020
1,771 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to halt enforcement against a motorcycle company because it tried to stay an order that refused relief — which legally cannot be stayed.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Ouko, P., Asike-Makhandia and Sichale, JJ.A) on a notice of motion dated 3rd August 2020 by Captain Motorcycles Manufacturing Co. Ltd seeking stay of execution of a decree in Thika CMCC No. 358 of 2016 and stay of proceedings pending an intended appeal against the ruling of Njuguna, J. delivered on 30th July 2020 in HC Misc. Appl. No. 22 of 2020, in which the High Court granted leave to appeal out of time but dismissed the prayer for stay of execution. Although the application was brought under Rule 41 of the Court of Appeal Rules and Sections 3, 3A and 3B of the Appellate Jurisdiction Act, the Court treated it as one under Rule 5(2)(b), applying the settled two-limb test: an arguable appeal and nugatory-ness. The Court held that the applicant sought to stay a negative order - the High Court's dismissal of its own stay prayer - which is incapable of execution, so no stay could issue. While acknowledging that the applicant's 40 motorcycles had been proclaimed and were at risk of auction, the Court found the applicant had not shown it would be near impossible to compensate it in damages should the appeal succeed, and that it had failed to demonstrate both limbs of the Rule 5(2)(b) test. The Court further declined to stay proceedings, stating it had no jurisdiction to do so as sought. The application was dismissed with costs to the 1st respondent.

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court did not definitively find the appeal non-arguable, but found the applicant failed to establish the required principles cumulatively, having not yet filed the appeal and relying only on a draft memorandum of appeal.

Reasoning

The applicant had not filed its appeal and relied on a draft memorandum raising nine grounds. The Court nonetheless focused on the fatal defect that the order sought to be stayed was a negative order dismissing the applicant's own prayer for stay, which is incapable of execution and therefore cannot be stayed, rendering analysis of arguability largely academic.

p. 2
02

Whether the appeal would be rendered nugatory absent stay

Holding

The applicant failed to demonstrate nugatory-ness; although its property had been proclaimed, it did not show it would be impossible to compensate it in damages if the appeal succeeded.

Reasoning

The Court acknowledged the applicant showed hardship - its 40 motorcycles had been proclaimed and were at risk of auction, and its clients had already paid for them. However, hardship alone is insufficient; the applicant did not demonstrate that compensation in damages would be near impossible, and the order sought to be stayed posed no immediate risk of execution.

p. 2
03

Whether the Court could treat the application under Rule 41 as one under Rule 5(2)(b)

Holding

Although jurisdiction under Rule 5(2)(b) was not expressly invoked, the Court treated the application as if brought under that rule since the body of the application made clear what was sought.

Reasoning

The application was brought under Rule 41 and Sections 3, 3A & 3B of the Appellate Jurisdiction Act. The Court noted that Rule 41 permits stay applications notwithstanding no prior application to the superior court, and eschewed form over substance by treating the application as one under Rule 5(2)(b) because the relief sought was plain.

p. 2

Legal principles established

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  • To succeed on an application for stay under Rule 5(2)(b), an applicant must show that the appeal or intended appeal is arguable, and secondly that unless stay is granted the appeal, if successful, will be rendered nugatory.
  • An arguable appeal need not be one that must succeed; a single arguable ground suffices.
  • A negative order, being one that merely refuses relief, is not capable of execution and cannot be stayed.
  • Substantial loss is the cornerstone of the jurisdiction to grant stay; it is what must be prevented by preserving the status quo.

Court orders

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  1. 1.Stay of execution of the decree in Thika Chief Magistrates Court Civil Case No. 358 of 2016 declined
  2. 2.Stay of proceedings in High Court Civil Appeal No. E035 of 2020 declined; the Court noted it has no jurisdiction to stay proceedings in the subordinate court as sought
  3. 3.Application dismissed with costs to the 1st respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 41
  • Court of Appeal RulesRule 5(2)(b)
  • Appellate Jurisdiction ActSection 3
  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B

Cases cited (8)

  • Butt v Rent Restriction Tribunal
    (1982) KLR 417
  • Stanley Kang’ethe Kinyanjui v Tony Ketter & 5 Others
    [2013] eKLR
  • Trust Bank Limited & Ano. v Investech Bank Limited & 3 Others
    Civil Application Nai. 258 of 1999 (unreported)
  • Dennis Mogambi Mang’are v Attorney General & 3 Others
    Civil Application No. NAI 265 of 2011 (UR 175/2011)
  • Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Others
    [2016] eKLR
  • Mukuma v Abuoga
    [1988] KLR 645
  • Republic v Kenya Anti-Corruption Commission & 2 others
    [2009] KLR 31
  • Reliance Bank Ltd V. Norlake Investments Ltd
    [2012] 1 EA 227
On appeal from
High Court at Nairobi
HC Misc. Appl No. 22 of 2020
Jurisdiction invoked
Rule 41 of the Court of Appeal Rules and Sections 3, 3A & 3B of the Appellate Jurisdiction Act; treated as brought under Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Captain Motorcycles Manufacturing Co. Ltd v Jane Muthoni Mberere & another [2020] KECA 263 (KLR)", Case Analysis (2020). Civil Application No. 212 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/263/eng@2020-10-23

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