Kenya Pipeline Company Limited v Cybercom Limited & another
The bottom line
#Kenya's Court of Appeal cancelled a seven-year-old stay order because the party who won it never filed its appeal, letting the case finally proceed.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court has jurisdiction to rescind its own interlocutory stay order
Yes - Rule 59(2) read with Rule 57(2) empowers the Court to vary or rescind orders made on applications, as confirmed in Nguruman and Habo Agencies.
The Court relied on Rule 59(2), which provides that an order made on an application may be varied or rescinded by the Court. It cited the 5-Judge bench decision in Nguruman Limited and Habo Agencies, which held that Rule 57(2) grants jurisdiction to review orders not covered by sub-rule (1). Jurisdiction was therefore established.
Whether the 1st respondent's inaction justified rescission of the stay
Yes - the 1st respondent failed to file the intended appeal for over 5 years, took no steps to obtain proceedings, and abused the stay order as a roadblock to justice.
The Court found that for over 5 years the 1st respondent took no steps to lodge the appeal, filed no replying affidavit, no submissions, and did not attend the hearing. The suit had been pending over 18 years and witnesses were retiring. Such abuse of a discretionary stay order warranted rescission in the interest of justice under Article 159.
Legal principles established
#- An order of the Court of Appeal made on an application may be varied or rescinded where the person on whose application it was made has failed to show diligence in the matter.
- Rule 57(2) of the Court of Appeal Rules confers jurisdiction on the Court to vary or rescind orders made in applications, including discretionary stay orders abused by a party.
Court orders
#- 1.The application dated June 18, 2020 merited
- 2.The orders of this Court issued on April 24, 2015 be and are hereby rescinded
- 3.The applicant is at liberty to proceed with the hearing of HCCC No 490 of 2004
- 4.The costs of this application will be borne by the 1st respondent
- On appeal from
- Court of Appeal (prior interlocutory ruling)
- Civil Application 212 of 2012 (order of 24 April 2015); underlying suit HCCC No 490 of 2004 Nairobi
- Jurisdiction invoked
- Articles 50 & 159 of the Constitution, section 3B of the Appellate Jurisdiction Act and Rule 57(2)/59(2) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Pipeline Company Limited v Cybercom Limited & another", Case Analysis (2022). Civil Application 212 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1359/eng@2022-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.