Jaffarali Kassam Abdulla v Pauline Mutee Makumu & another [2021] KECA 889 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a stay bid because the applicant ignored a conditional stay from the trial court instead of complying with or appealing it.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court of Appeal may entertain a Rule 5(2)(b) stay application after the trial court has granted a conditional stay which the applicant has ignored
No. Where the lower court has exercised a parallel jurisdiction and granted a conditional stay, the applicant must either comply with the conditions or challenge them on appeal; ignoring the order and seeking identical relief from the appellate court is an abuse of process and renders the application incompetent.
The Court relied on its own precedents Yusuf Kifuma Chanzu v Equity Bank and Hunker Trading Co Ltd v Elf Oil Kenya Ltd, both on materially identical facts. In those cases, an applicant who had obtained stay on terms from the High Court, did not appeal against those terms and did not comply with them, could not invoke Rule 5(2)(b) afresh; the Court would not exercise original jurisdiction where the lower court has exercised a parallel jurisdiction unless impropriety in that exercise is demonstrated.
Whether delay of over one year in filing the stay application undermined it
Yes. The application was filed over a year after the impugned judgment, during which the applicant had sufficient time to raise the security ordered by the ELC but did not.
The Court noted that the applicant took one year and two months to file the application after judgment, gave no explanation for the delay, admitted he was unable to avail Kshs. 53,000,000 as ordered by the ELC, and neither complied with the conditional stay nor moved either court to set aside its conditions before the orders lapsed.
Legal principles established
#- The Court of Appeal has jurisdiction to entertain a Rule 5(2)(b) application for stay of execution regardless of whether such an application has been lodged before the court appealed from
- A party who obtains a conditional stay from the trial court, ignores its conditions and does not challenge them on appeal cannot thereafter seek the same orders from the Court of Appeal under Rule 5(2)(b); such an application is an abuse of process and incompetent
Court orders
#- 1.The application for stay of execution pending appeal is dismissed with costs in the appeal
- On appeal from
- Environment and Land Court
- E.L.C. No. 388 of 2010
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules and Order 42 rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jaffarali Kassam Abdulla v Pauline Mutee Makumu & another [2021] KECA 889 (KLR)", Case Analysis (2021). Civil Application No. E015 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/889/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.