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Court of AppealAllowedCivil Application 212 of 2012· [2022] KECA 1359 (KLR)

Kenya Pipeline Company Limited v Cybercom Limited & another

Court of Appeal
2 December 2022
1,732 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (H. A. Omondi, K. I. Laibuta and P. M. Gachoka, JJ.A.) on a notice of motion by Kenya Pipeline Company Limited seeking rescission of an order made by a differently constituted bench (Githinji, Nambuye and Ouko, JJ.A.) on 24 April 2015, which had stayed further proceedings in HCCC No 490 of 2004 pending the filing and determination of an intended appeal by Cybercom Limited against a High Court decision refusing leave to amend its defence to add a statute-barred counterclaim. The applicant deponed that for over five years the 1st respondent had taken no steps to file the intended appeal or to obtain the High Court proceedings, while the underlying suit, filed in 2004, remained stalled and witnesses were retiring. The 1st respondent filed no response and did not attend the hearing. The Court held that under Rule 59(2), read with Rule 57(2) of the Court of Appeal Rules, it had jurisdiction to vary or rescind orders made on applications, as confirmed by the 5-Judge bench in Nguruman Limited and in Habo Agencies. Finding that the 1st respondent had used the stay order as a blanket and gone to sleep, and invoking Article 159's imperative that justice not be delayed, the Court allowed the application, rescinded the 2015 stay order, permitted the applicant to proceed with the hearing of HCCC No 490 of 2004, and awarded the costs of the application to the applicant against the 1st respondent. The ruling binds subordinate courts on the availability of rescission where a stay obtained under Rule 5(2)(b) is abused by inaction.

Key legal issues

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01

Whether the Court has jurisdiction to rescind its own interlocutory stay order

Holding

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.

Reasoning

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.

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02

Whether the 1st respondent's inaction justified rescission of the stay

Holding

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.

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.The application dated June 18, 2020 merited
  2. 2.The orders of this Court issued on April 24, 2015 be and are hereby rescinded
  3. 3.The applicant is at liberty to proceed with the hearing of HCCC No 490 of 2004
  4. 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

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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, "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.