Astonfield Solesa Sola Kenya Ltd & another v Kenya Power and Lighting Company Limited & another; Shenzhen Clou Electronics Co. Ltd (Interested Party) [2020] KECA 665 (KLR)
The bottom line
#Kenya's Court of Appeal refused to halt a KPLC solar tender, ruling that losing future profits does not justify a stay pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
Yes - given the exclusion of bilateral/multilateral-agreement procurement from the Public Procurement and Asset Disposal Act, it is arguable whether the non-applicability of the Act to such procurements is unconstitutional
The applicant contended that section 4(2)(f) of the Act ousts Article 227 of the Constitution on transparency and accountability in procurement. Because the Act expressly excludes procurement under bilateral or multilateral agreements, the court found a single bona fide arguable ground existed and did not make definitive findings, which would embarrass the main appeal.
Whether the intended appeal would be rendered nugatory absent stay
No - the applicant's asserted prejudice, namely hampered anticipated growth and profit from the tender, is not a cognizable ground under the nugatory test
The applicant argued that loss of the tender would impede its growth as a local company and affect its goodwill. The court held this amounts only to loss of anticipated growth and profit, which is not a proper consideration in the nugatory inquiry; having failed the second limb, the applicant had to fail on the motion notwithstanding arguability.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both twin principles: an arguable appeal and that the appeal will be rendered nugatory absent stay; failure on either limb is fatal, and anticipated profit or growth is not a nugatory-inducing prejudice
Court orders
#- 1.The motion dated 3rd April 2019 seeking stay of execution and injunction pending the intended appeal is dismissed
- 2.Costs of the motion awarded to the 1st and 3rd respondents, the 2nd respondent having opted not to take sides
- On appeal from
- High Court of Kenya at Nairobi (Judicial Review and Constitutional Division)
- JR Misc. Application No. 181 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution and injunction pending intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Astonfield Solesa Sola Kenya Ltd & another v Kenya Power and Lighting Company Limited & another; Shenzhen Clou Electronics Co. Ltd (Interested Party) [2020] KECA 665 (KLR)", Case Analysis (2020). Civil Application No. 106 of 2019 (UR 105/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/665/eng@2020-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.