Kenya Bureau of Standards v Kwale International Sugar Company Ltd & 4 others
The bottom line
#Kenya's Court of Appeal paused a Kshs. 10 million judgment against the standards bureau, but only partially, pending the main appeal's outcome.
What this practically means
#Executive summary
#Key legal issues
#Res judicata and abuse of process
The application is neither res judicata nor an abuse of process because the earlier dismissed application concerned a different decision (the 7th March 2019 'judgment' which was not a judgment in law), whereas this application concerns the judgment of 7th November 2019.
The court distinguished the earlier Civil Application 84 of 2019, which sought stay of a document labelled a 'judgment' but held not to be a judgment as understood in law. The present application targets the subsequent, distinct judgment of 7th November 2019, which could not have been the subject of the earlier application, so res judicata does not arise.
Whether the intended appeal is arguable
The appeal is arguable; complaints that the Judge descended into the arena, reframed the 1st respondent's case, ignored the Standards Act in ordering unconditional permit renewal, and awarded Kshs. 10,000,000.00 without foundation suffice.
Applying the established principles, the court held that an arguable appeal is one that is not frivolous and ought to be argued fully. The memorandum of appeal raised complaints touching on the Judge's conduct, statutory provisions under the Standards Act, and an unpleaded damages award, satisfying the arguability threshold.
Whether the appeal will be rendered nugatory
A partial stay was warranted: the status quo as at 16th February 2022 continues pending determination of Civil Appeal No. 2 of 2020, and execution of the monetary orders (Kshs. 10,000,000.00 and compensation for 8995 bags) is stayed.
Bearing in mind that nugatory-impact turns on each case's own facts, the court noted controversy over the state of the seizures, that the main appeal had been heard and judgment reserved, and that the applicant is a public body while the 1st respondent's means are unknown, justifying the tailored orders.
Legal principles established
#- An arguable appeal need not be one that must succeed, but one that is not frivolous and ought to be argued fully before the court.
- In considering whether an appeal will be rendered nugatory, each case must depend on its own facts and peculiar circumstances.
- Res judicata does not bar a subsequent application directed at a different decision of the High Court from that dealt with in the earlier application.
Court orders
#- 1.That the status quo as at 16th February 2022 be maintained pending the determination of Civil Appeal No. 2 of 2020
- 2.A stay of execution of the judgment in respect of the orders for payment of Kshs. 10,000,000.00 and compensation for 8995 bags of sugar pending the hearing and determination of Civil Appeal No. 2 of 2020
- 3.Costs of the application to abide the outcome of the main appeal
- On appeal from
- High Court of Kenya at Mombasa
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution; Sections 3 and 3A of the Appellate Jurisdiction Act; Rules 5(2)(b) and 47 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Kenya Bureau of Standards v Kwale International Sugar Company Ltd & 4 others", Case Analysis (2022). Civil Application E020 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/526/eng@2022-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.