Evergreen Marine (Singapore) PTE Limited v Gulf Badar Group (Kenya) Limited & another [2021] KECA 920 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a Mombasa lawsuit that had already closed, confirming courts grant stays of proceedings only in exceptional circumstances.
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 stay of proceedings is not granted, the intended appeal will be rendered nugatory
Key legal issues
#Whether the intended appeal was arguable
The appeal appeared arguable on a prima facie basis given the divergent views of the parties on the denial of leave to respond to the amended plaint.
The court reiterated that an arguable ground need not be one that should succeed but one raising a serious question of law or reasonable argument deserving consideration. On the competing contentions - the applicants' claim of denial of a fair hearing versus the respondent's claim that no right to plead survived - the court found the appeal appeared arguable, though this alone did not satisfy the Rule 5(2)(b) test.
Whether the intended appeal would be rendered nugatory if stay was not granted
The nugatory test failed because the proceedings had concluded and judgment was reserved, leaving nothing to stay.
The respondent demonstrated that both parties had highlighted submissions and judgment was reserved, so the application had been overtaken by events and there was nothing to stay. The court further noted that the orders challenged were interlocutory and the applicants would retain a right of appeal even after final judgment, so no nugatory prejudice was shown.
Legal principles established
#- A stay of proceedings may be granted only sparingly and in exceptional circumstances, since it interrupts the other party's right to conduct the hearing.
- An applicant under Rule 5(2)(b) must establish both that the appeal is arguable and that it will be rendered nugatory if stay is not granted.
Court orders
#- 1.Dismissal of the Notice of Motion dated 1st September, 2020 seeking stay of proceedings
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C No. 65 of 2014
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of proceedings in Mombasa HCCC No. 65 of 2014 pending the hearing and determination of the intended appeal
The application was overtaken by events as proceedings had closed and judgment was reserved; the applicants retain a right of appeal even after final judgment
Costs
The application was dismissed with costs to the respondent.
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.
a court may sparingly, and only in exceptional circumstances, grant an order to stay proceedings which essentially is an interruption of the other parties’ right to conduct the hearing
for the applicants to succeed, they must establish that, the appeal is arguable and not frivolous and that if the stay order of the proceedings sought is not granted, the appeal will be rendered nugatory
That being our view of the matter, we find no merit in this application and we order it dismissed with costs to the respondent.
Issues in the judgment
#The judgment inconsistently states the amount of loss of profit claimed under the amendment (USD 2,44,501) versus the decretal amount referenced elsewhere (USD 2,476,611), and also gives inconsistent dates for the reserved judgment (24th November, 2020 in one passage, 24th November, 2010 in another).
The date of the reserved judgment is stated inconsistently within the judgment itself.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evergreen Marine (Singapore) PTE Limited v Gulf Badar Group (Kenya) Limited & another [2021] KECA 920 (KLR)", Case Analysis (2021). Civil Application No. 66 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/920/eng@2021-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.