Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealStruck OutCivil Application 3 of 2018

Muiri Coffee Estate Limited v Kenya Commercial Bank Limited & 3 others

Court of Appeal
28 April 2022
2,103 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal struck out Muiri Coffee Estate's stay application because it should have asked to restore an earlier dismissed application instead of filing a fresh one.

What this practically means

#

Executive summary

#
Muiri Coffee Estate Limited moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules 2010 and Sections 3 and 3A of the Appellate Jurisdiction Act seeking stay of execution of, and stay of further proceedings pursuant to, a ruling of Havelock, J. dated 12th February 2014 in Milimani HCCC No. 505 of 2008, which issued orders of vacant possession and eviction against the applicant in a suit that had been dismissed by the Court of Appeal on 26th April 2013. The applicant anchored the motion on a notice of appeal dated 13th February 2014. The 4th respondent opposed, raising a preliminary objection that an earlier, identical application (Civil Application Nai No. 50 of 2014 (UR 37/2014)) had been dismissed on 25th March 2015 for want of prosecution due to counsel's nonattendance, so the proper remedy was restoration under Rule 56(3) and (4), not a fresh application; the 4th respondent also argued the intended appeal was not arguable, was brought after inordinate delay, and would not be rendered nugatory. The Court held it was properly seized of the matter since a notice of appeal existed, restated the twin Rule 5(2)(b) threshold from Stanley Kangethe Kinyanjui v Tony Ketter, and adopted the Owners of the Motor Vessel 'Lilian S' jurisdictional principles. Finding no controverting affidavit or submissions from the applicant on the earlier dismissed application, the Court held its hands tied: the prescribed procedure was restoration under Rule 56(3) and (4). The application was struck out as incompetent for want of jurisdiction, with costs to the 4th respondent. The merits of arguability and nugatory-ness were never reached.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court is properly seized of the application anchored on a notice of appeal
  2. 2.Whether the application is incompetent for want of jurisdiction given an earlier application seeking the same relief dismissed for want of prosecution and the proper remedy under Rule 56(3) & (4)
  3. 3.Whether the intended appeal is arguable and whether it would be rendered nugatory if stay is not granted

Key legal issues

#
01

Jurisdiction of the Court to entertain a fresh Rule 5(2)(b) application duplicating an earlier dismissed application

Holding

The Court lacks jurisdiction to entertain the fresh application; the applicant's remedy was restoration of the earlier dismissed application under Rule 56(3) & (4)

Reasoning

The 4th respondent showed an earlier application seeking the identical stay relief was dismissed for want of prosecution due to counsel's nonattendance. The applicant filed no affidavit or submissions controverting that assertion. Rule 56(3) & (4) prescribes restoration or re-hearing within thirty days. The applicant's silence, coupled with the rule, tied the Court's hands and compelled it to down its tools.

p. 4
02

Seizure of the matter under Rule 5(2)(b)

Holding

The Court is properly seized of the matter because the application is anchored on a notice of appeal dated 13th February 2014

Reasoning

The mandate to intervene under Rule 5(2)(b) lies where the application is anchored on a notice of appeal. Such a notice exists on record. Jurisdiction on that footing was established, though the Court then addressed the preliminary objection on want of jurisdiction to deal with the merits.

p. 3
03

Threshold for stay pending appeal

Holding

The Court adopted the Stanley Kangethe Kinyanjui v Tony Ketter principles: arguability and nugatory-ness must both be demonstrated

Reasoning

The Court fully adopted the exposition in Stanley Kangethe Kinyanjui v Tony Ketter & Others summarizing the law and principles applicable to such applications. It restated the twin requirements but did not reach the merits because the application failed on jurisdiction.

p. 3

Legal principles established

#
  • Where an application was determined in a party's absence, the remedy is restoration or re-hearing under Rule 56(3) & (4) of the Court of Appeal Rules, not a fresh application seeking the same relief
  • A court must satisfy itself of its jurisdiction, both on the facts and in law, before pronouncing itself on the merits of an application
  • An applicant under Rule 5(2)(b) must demonstrate that the appeal is arguable and that if the relief sought is not granted, the appeal will be rendered nugatory

Court orders

#
  1. 1.The application is struck out for want of jurisdiction with costs to the 4th respondent

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya
Milimani HCCC No. 505 of 2008
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules 2010; Sections 3 and 3A of the Appellate Jurisdiction Act

Relief refused

#

Stay of execution of the orders of Havelock, J. made on 12th February 2014

Application struck out as incompetent; an earlier identical application had been dismissed for want of prosecution and the proper remedy was restoration under Rule 56(3) & (4)

p. 4

Stay of any further proceedings in HCCC No. 505 of 2008

Same fate - application struck out for want of jurisdiction

p. 4

Costs

Costs to the 4th 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.

The upshot of the totality of the above assessment and reasoning is that the application before us is incompetent. It is accordingly struck out for want of jurisdiction with costs to the 4th respondent.
p. 4Final orders - striking out
The proper procedure the applicant ought to have taken is that set out in Rule 56(3) & (4) of this Court’s Rules.
p. 4Remedy for application determined in a party's absence
there should be demonstration first that the appeal is arguable; and secondly that if the relief sought is not granted, the appeal will be rendered nugatory.
Twin threshold for stay pending appeal
Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given
p. 4Jurisdiction - Owners of the Motor Vessel 'Lilian S' principle adopted

Issues in the judgment

#
minor

Judgment alternately describes the applicant as 'applicant' and 'appellant'

minor

Director of 4th respondent's name spelled inconsistently

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Muiri Coffee Estate Limited v Kenya Commercial Bank Limited & 3 others", Case Analysis (2022). Civil Application 3 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/572/eng@2022-04-28

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