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Court of AppealDismissedCivil Application (Mombasa) - application under rule 5(2)(b), Court of Appeal Rules

Gulamhusein v Kenya Railways Corporation Limited (Civil Application E094 of 2023) [2024] KECA 447 (KLR)

Court of Appeal of Kenya
12 April 2024
1,732 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal dismissed a bid to pause a Mombasa land case because the applicant failed to provide the court records needed to judge the appeal.

What this practically means

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Executive summary

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The applicant, Gulamhusein F. Gulamhusein, moved the Court of Appeal at Mombasa by a Notice of Motion dated 9th October 2023 under rules 5(2)(b), 42 and 47 of the Court of Appeal Rules, seeking a stay of proceedings in Mombasa ELC No 46 of 2018 against Kenya Railways Corporation Limited pending the hearing and determination of his intended appeal. The intended appeal challenges a ruling of Naikuni, J. of the Environment and Land Court delivered on 4th May 2023 dismissing the applicant's application that the Judge recuse himself on grounds of alleged bias. The applicant contended that procedural irregularities in the handling of the recusal application showed the court could not be impartial, and that his rights to a fair hearing under Articles 25(c) and 50(1) of the Constitution would be violated. The respondent opposed, asserting the appeal was not arguable, that notice of the ruling had been issued by email, and that the application was a delay tactic in a suit dating back to 2012. Applying the settled rule 5(2)(b) twin principles, the Court held that although a single arguable point suffices, the applicant had failed to annex the impugned ruling and the trial proceedings underlying the bias allegations, making it impossible to determine arguability. Having failed the first limb, the second limb did not arise. The motion was dismissed with costs in the appeal.

Questions the Court framed

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

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, unless a stay of proceedings is granted, the appeal would be rendered nugatory

Key legal issues

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01

Whether the intended appeal against the dismissal of the recusal application was arguable

Holding

The intended appeal was not shown to be arguable because the applicant failed to attach the impugned ruling and the trial court proceedings underlying the bias allegations

Reasoning

The court noted that the draft memorandum of appeal raised grounds of bias and violation of the right to a fair hearing, but the material needed to assess those grounds - the ruling of 4th May 2023 and the relevant proceedings - was not annexed. Without that crucial material the court could not determine whether the appeal was arguable, so the first limb failed.

p. 3
02

Whether the nugatory limb needed to be considered once the first limb failed

Holding

Having failed the arguability limb, the applicant necessarily failed the rule 5(2)(b) test and the second limb did not fall for consideration

Reasoning

Both limbs of the rule 5(2)(b) test must be satisfied. Since the applicant failed on the first limb, the court expressed no view on whether the appeal would be rendered nugatory and dismissed the application outright with costs.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate that the appeal or intended appeal is arguable and that, unless the orders sought are granted, the appeal, if successful, shall be rendered nugatory
  • A single arguable point suffices to satisfy the arguability limb; a multiplicity of points is not required
  • An applicant alleging bias must place before the appellate court the impugned ruling and the proceedings giving rise to the allegations; without them, arguability cannot be determined

Court orders

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  1. 1.The Notice of Motion dated 9th October 2023 is dismissed with costs in the appeal

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court
Mombasa ELC No 46 of 2018
Jurisdiction invoked
Rules 5(2)(b), 42 and 47 of the Court of Appeal Rules

Relief refused

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Stay of proceedings in Mombasa ELC No 46 of 2018 pending the hearing and determination of the intended appeal

The applicant failed to satisfy the first limb of the rule 5(2)(b) test as he did not attach the impugned ruling or trial court proceedings, so arguability could not be determined

p. 3

Costs

The Notice of Motion dated 9th October 2023 is dismissed with costs in the appeal.

Quotable passages

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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 principles that guide this Court in determination of an application under rule 5(2)(b) of this Court’s Rules are well settled to wit: that an applicant must demonstrate that the appeal or intended appeal is arguable; and that, unless the orders sought are granted, the appeal, if successful, shall be rendered nugatory.
p. 3Rule 5(2)(b) twin principles
An arguable appeal need not raise a multiplicity of points, but a single arguable point is suficient to satisfy the first limb.
p. 3Standard of arguability
Consequently, we need not consider the second limb, with the result that the Notice of Motion dated 9th October 2023 lacks merit and is hereby dismissed with costs in the appeal.
p. 3Final orders - dismissal

Issues in the judgment

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minor

The judgment does not state the appeal number or file number of the rule 5(2)(b) application before the Court of Appeal; only the lower court case number (Mombasa ELC No 46 of 2018) is given

minor

The date of the decision appealed from is not stated in the judgment; only the delivery date of the ruling (4th May 2023) can be inferred

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, "Gulamhusein v Kenya Railways Corporation Limited (Civil Application E094 of 2023) [2024] KECA 447 (KLR)", Case Analysis (2024). Civil Application (Mombasa) - application under rule 5(2)(b), Court of Appeal Rules. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/447/eng@2024-04-12

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