David Morton Silverstein v Atsango Chesoni

Court of Appeal, at Nairobi

March 1, 2002

Omolo, Bosire & O’Kubasu JJ A

Civil Application No NAI 189 of 2001

(In an intended appeal from a Ruling of the High Court at Nairobi, Aganyanya & Rimita JJ, dated 26th April 2001 in HCCA No 105 of 2000)

Civil Practice and Procedure – stay of proceedings – stay pending appeal – factors to be considered in such application.

Civil Practice and Procedure - stay of proceedings - stay pending appeal - applications under Rule 5(2)(b) of the Court of Appeal Rules.

Medical Practitioners – disciplinary jurisdiction – of the Kenya Medical Practitioners and Dentists Board – appeals from board decision – meaning of an aggrieved person under section 20 of the Medical Practitioners and Dentists (Disciplinary Proceedings) Rules

The applicant, a medical practitioner was the subject of a Preliminary Inquiry committee to answer a complaint in respect of a patient he managed and later died while under his attention. The Kenya Medical Practitioners and Dentists Board rendered its decision absolving the applicant from any blame with respect to the death of the patient, who was the father of the respondent. The respondent aggrieved by the decision, appealed to the High Court against the decision of the board. The applicant unsuccessfully filed an application seeking to have the appeal dismissed in limine on the grounds that the respondent had no locus standi and that the appeal was an abuse of the court process. The court held that the respondent had locus standi as a person aggrieved. The applicant then made this application of stay of the High Court proceedings under Rule 5 Court of Appeal Rules

Held:

1. An applicant under rule 5(2)(b) of the Court of Appeal Rules must satisfy the court that:

a) the intended appeal is arguable and not frivolous and

; b) unless the court grants an order of stay the intended appeal if successful, will be rendered nugatory.

2. An applicant such as the one in this case is obliged to prove not only one, but both of these requirements before he can hope to obtain an injunction or an order of stay from the court.

3. The fact of whether or not the respondent was an aggrieved person within the meaning of section 20(6) of the Medical Practitioners and Dentists Act, was not a matter to be decided in this kind of application but in the intended appeal itself.

4. The onus of satisfying the court that unless a stay is granted the intended appeal would be rendered nugatory is upon the applicant. In this case the applicant failed to discharge this burden.

5. In applications for stay under rule 5(2)(b) of the Court of Appeal Rules, each case must be decided depending on its own facts.

6. Even though the applicant had an arguable appeal, he had not satisfied the court that if it did not grant him a stay of proceedings, his appeal in this court would be rendered nugatory.

7. The right of appeal from the board to the High Court conferred by section 20(6) of the Act, to any person aggrieved, is an arguable point in the intended appeal but did not warrant a stay.

Application dismissed

Cases

1. Kenya Commercial Bank Ltd v Benjah Amalgamated Ltd & another Civil Application No NAI 50 of 2001

2. Ngoni-Matengo Co-operative Marketing Union Ltd v Alimahomed Osman [1959] EA 577

Texts

Dickens, C Oliver Twist Penguin Popular Classics p 491

Statutes

1. Medical Practitioners and Dentists Act (cap 253) sections 4; 20(6)

2. Civil Procedure Act (cap 21) sections 3, 3A, 79B, 79G

3. Civil Procedure Rules (cap 21 Sub Leg) order L rule 1

4. Constitution of Kenya section 60(1)

5. Court of Appeal Rules (cap 9 Sub Leg) rule 5(2)(b)

6. Medical Practitioners and Dentists (Disciplinary Proceedings) (Procedure) Rules (cap 253 Sub Leg) rules 3, 4

Advocates

Mr Havelock for the Applicant.

Mr Adere for the Respondent.