[1998] KECA 159 (KLR)
The Court found that while the applicant's intended appeal was arguable and not frivolous, the applicant failed to demonstrate that the appeal would be rendered nugatory if a stay was not granted. The applicant did not provide evidence of irreparable loss or show that the profit margin was so low as to justify a...
Source-derived case information.
- Citation
- [1998] KECA 159 (KLR)
- Parties
- Applicant: Kenya Shell Limited; Respondent: Charles Migui Maranga; Respondent: Agnes Wairimu Maranga
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 284 of 1998
- Procedural Posture
- Civil Application / Application for Stay Pending Appeal Under Rule 5(2)(b)
- Outcome
- application dismissed with costs to the respondents
- Judges
- JE Gicheru, GS Pall
- Legal Topics
- Interlocutory Injunctions, Stay of Execution, Contract Termination, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Shell Limited
Applicant
Charles Migui Maranga
Respondent
Agnes Wairimu Maranga
Respondent
Procedural Posture
Civil Application / Application for Stay Pending Appeal Under Rule 5(2)(b)
Legal Issues
- 1 Whether the applicant has demonstrated an arguable appeal that is not frivolous.
- 2 Whether the applicant has shown that the intended appeal will be rendered nugatory if a stay is not granted.
Ratio Decidendi
The Court found that while the applicant's intended appeal was arguable and not frivolous, the applicant failed to demonstrate that the appeal would be rendered nugatory if a stay was not granted. The applicant did not provide evidence of irreparable loss or show that the profit margin was so low as to justify a stay. The terms of the new lease would not take effect until May 1999, and the Court was not persuaded that the appeal would not be heard and determined by then. Consequently, the application for stay was dismissed.
Court Disposition
application dismissed with costs to the respondents
Orders
- The application for stay is dismissed.
- Costs of the application are awarded to the respondents.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI (CORAM: GICHERU, OMOLO & PALL, JJ.A.) CIVIL APPLICATION NO. NAI. 284 OF 1998 (108/98) BETWEEN
KENYA SHELL LIMITED ..................................APPLICANT
AND
CHARLES MIGUI MARANGA ...........................1ST RESPONDENT
AGNES WAIRIMU MARANGA
(Application from the order of the High Court of Kenya at Nairobi (Mr. Mbogholi Msagha, J.) dated 28th day of October, 1998 in H.C.C.C. NO. 643 OF 1998) ********************
RULING OF THE COURT
In an application such as the one we have before us, namely, one under Rule 5 (2) (b) of the court's rules, an applicant must show to the court two things;
(i)that the intended appeal is an arguable one or one which is not frivolous, and
(ii)that unless a stay or an injunction or whatever is sought is not granted, the intended appeal, if successful, will be rendered nugatory.
We are satisfied on the material placed before us that the intended appeal by Kenya Shell Limited, the applicant, is clearly an arguable one. Before the High Court, the Marangas, the respondents, purported to rely on an agreement made in 1988 as the basis of the contract between them and the applicant and that it was pursuant to that agreement and that agreement alone upon which they operated the applicant's petrol station at Kenyatta Market. The applicant, on the other hand, contended that the relevant agreement was the one of 1995. The learned Judge of the High Court appeared to think, in granting the mandatory injunction, that the 1995 agreement was imposed upon the respondents. We think that is a debatable point. In any case, Mr. Kiragu Kimani for the applicant submitted before us that whether one relies on the agreement of 1988 or the one of 1995, both had termination clauses and that the applicant had validly terminated whichever agreement was relied on. That is another arguable point in the intended appeal. As we have said the applicant's intended appeal cannot in any way be described as frivolous.
Will that appeal be rendered nugatory if we do not grant a stay to the applicant? We do not think the applicant satisfied us on this point. As far as we understood Mr. Kimani, all he was saying on this point is that the applicant has entered into a lease over the land upon which the petrol station stands and that by the terms of that lease the applicant is obliged to hand over the dealership of the petrol station to a nominee of the landlord.
We however, note that the terms of the lease do not take effect until the 1st May, 1999. We do not want to believe and cannot make a decision on the basis that by May, 1999, the intended appeal will not have been heard and determined and that the applicant would then be in violation of the terms of the lease and may, as a consequence, lose the petrol station itself. The other issue in dispute between the applicant and the respondents, as Mr. Kuria for the respondents correctly pointed out, is really the margin of profit being earned by the applicant from the operation of the station by the respondents. The applicant did not attempt to show even before the trial Judge that its profit margin is so low that it may suffer irreparable loss if an injunction was granted to the respondents. For our part we are unable to see in what manner the applicant's intended appeal will be rendered nugatory if we do not grant a stay. That being our view of the matter, this application must fail and we order that it be and is hereby dismissed with costs thereof to the respondents.
Dated and delivered at Nairobi this 13th day of November, 1998.
J. E. GICHERU
...............
JUDGE OF APPEAL
R. S. C. OMOLO
...............
JUDGE OF APPEAL
G. S. PALL
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR