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Court of AppealPartially AllowedCivil Application E143 of 2022· [2022] KECA 718 (KLR)

Mungania Tea Factory Co Ltd & 51 others v Attorney General & 6 others

Court of Appeal
22 July 2022
ASAsike-MakhandiaKMK. M'InotiSKS. ole Kantai
1,851 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi (Asike-Makhandia, M'Inoti and ole Kantai, JJA) on a motion dated 27 April 2022 by 52 registered tea factory companies seeking stay of execution and further proceedings in three consolidated constitutional petitions (HC. Pet. Nos. E254 of 2020, E243 of 2020 and E083 of 2021) challenging tea industry reforms under the Tea Act, 2020. The applications were brought pending an intended appeal against case-management directions issued on 21 October 2021 by an expanded High Court bench of Ong'udi, Mrima and Nyagah, JJ., which the applicants said were issued without hearing the parties, subsumed pending interlocutory applications (including joinder) into the main petitions, and failed to resolve a live dispute over legal representation between their former advocates (Millimo & Muthomi) and current advocates (Gwandaru Thuita & Co.). Having obtained leave to appeal from the High Court, the applicants were properly before the Court under rule 5(2)(b). The court found the twin principles satisfied: the intended appeal was arguable - the right to be heard and the question of counsel of choice were not frivolous - and it would be rendered nugatory if the petitions were heard before the appeal, leaving only a paper victory. Respondents did not oppose. The court granted a conditional stay of proceedings, requiring the record of appeal to be filed and served within 45 days and the appeal fast-tracked, with the stay standing discharged in default. Costs were left to abide the outcome of the intended appeal.

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal is arguable: the right to be heard, party representation by counsel of choice, and whether petitions can proceed before resolving contested legal representation are not frivolous grounds.

Reasoning

The court found the applicants' complaints - that directions were issued without hearing parties, that pending applications including joinder were unresolved, and that a dispute over legal representation between former and current advocates remained live - raised grounds that must be fully ventilated before the Court of Appeal.

p. 5
02

Nugatory value of the intended appeal

Holding

If the petitions proceed to hearing before the appeal, the appeal would be overtaken by events and the applicants would gain only a paper victory even if successful.

Reasoning

The court reasoned that hearing the petitions under the contested directions would render any successful appeal futile, since the very directions under challenge would already have governed the hearing, and the applicants risked unnecessary costs for two sets of advocates.

p. 5

Legal principles established

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  • An applicant for stay under rule 5(2)(b) must satisfy the twin principles that the intended appeal is arguable and that it will be rendered nugatory if stay is not granted.
  • Stay of proceedings pending appeal may be issued conditionally, with default discharging the stay, to ensure expeditious resolution.

Court orders

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  1. 1.Conditional stay of proceedings in the three consolidated petitions before the High Court pending the intended appeal
  2. 2.Applicants to file and serve the record of appeal within 45 days from the date of the ruling
  3. 3.Appeal to be fast-tracked for hearing and determination
  4. 4.In default of filing and serving the record of appeal as directed, the orders of stay of execution and of proceedings shall stand discharged

Authorities

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Legislation

  • Tea Act
  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (4)

  • Tom Kusienya & Others v. Kenya Railways Corporation & Others
    [2013] eKLR

    Party's right to be represented by an advocate of their own choice

  • Delphis Bank Ltd v. Channan Singh Chatty & 6 Others
    [2005] eKLR

    Party's right to be represented by an advocate of their own choice

  • Law Society of Kenya v. Attorney General & 3 Others
    [2021] eKLR

    Contested legal representation should be determined first

  • Republic v. Committee on Senior Counsel & Another ex parte Allen Wanyeki Gichuhi
    [2021] eKLR

    Contested legal representation should be determined first

On appeal from
High Court of Kenya at Nairobi
HC. Pet No. E254 of 2020 (consolidated with E243 of 2020 and E083 of 2021)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (after leave to appeal granted by the High Court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mungania Tea Factory Co Ltd & 51 others v Attorney General & 6 others", Case Analysis (2022). Civil Application E143 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/718/eng@2022-07-22

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