Board of Management, Eldoret Secondary School v Board of Trustees, Good News Church of Africa (Civil Application E084 of 2021) [2023] KECA 261 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a school board's bid to pause a lawsuit, confirming stays of proceedings are granted only in the clearest of cases.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, if a stay of proceedings is not granted, the intended appeal would be rendered nugatory
Key legal issues
#Arguability of the intended appeal
The intended appeal was not arguable; the High Court had in fact reasoned that the applicant's defence had already been amended and the sought amendment was to enjoin a co-defendant
The court noted that no draft Memorandum of Appeal was annexed. On the substance, the applicant claimed the High Court gave no reasons for refusing leave to file additional documents, but a perusal of the ruling of November 17, 2020 showed the court had found the defence and counterclaim already amended on August 15, 2019 and that the amendment sought was for enjoinment of a co-defendant. Accordingly the applicant failed the first limb of the Rule 5(2)(b) test.
Nugatory value and the drastic nature of stay of proceedings
The applicant failed to demonstrate prejudice, and stay of proceedings being drastic should issue only in the clearest of cases
Even had arguability been shown, the applicant did not demonstrate that it would suffer prejudice if the suit proceeded to hearing. The court emphasized that stay of proceedings impedes the constitutional right of access to justice and is reserved for the clearest of cases; on the facts the applicant's case did not meet that threshold.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal will be rendered nugatory absent stay
- Stay of proceedings is a drastic remedy to be granted sparingly and only in the clearest of cases
Court orders
#- 1.The applicant's motion dated May 27, 2021 is dismissed in its entirety with costs to the respondent
- 2.The interim orders issued on November 14, 2022 are vacated
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Rules 5(2)(b) and 42(1) of the Court of Appeal Rules, 2010
Relief refused
#Stay of proceedings pending the hearing and determination of the main appeal
The applicant failed to establish both limbs of the Rule 5(2)(b) test: no arguable appeal was demonstrated and no nugatory prejudice was shown; stay of proceedings is drastic and should be granted only in the clearest of cases
Costs
Costs of the application awarded to the 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 jurisdiction of the Court under Rule 5 (2) (b) is original and discretionary and it is trite law that to succeed, an applicant has to show firstly that his appeal or intended appeal is arguable, or put another way, it is not frivolous and secondly that unless he is granted a stay, the appeal or intended appeal, if successful will be rendered nugatory.
Additionally, stay of proceedings is a drastic judicial action that should be sparingly and rarely invoked as it may impede the right to access to justice and should only be issued in the clearest of cases
the applicant's motion dated May 27, 2021 is without merit and the same is hereby dismissed in its entirety with costs to the respondent.
The interim orders issued on November 14, 2022 are hereby vacated.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Board of Management, Eldoret Secondary School v Board of Trustees, Good News Church of Africa (Civil Application E084 of 2021) [2023] KECA 261 (KLR)", Case Analysis (2023). Civil Application No. E085 of 2021 (motion dated May 27, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/261/eng@2023-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.