Automated Summary
Key Facts
Safaricom PLC sought an injunction and stay of proceedings in the High Court pending an appeal from a ruling that allowed Wilfred Nderitu and Charles Kanjama to pursue their lawsuit as a class action on behalf of Safaricom's subscribers. The High Court granted the class action status without hearing the applicant and the 3rd respondent (Communications Authority of Kenya), whom had opposed the application. Safaricom argued this violated constitutional rights to a fair hearing and risked rendering its appeal nugatory due to potential astronomical liability from damages awarded to numerous subscribers. The Court of Appeal found the appeal arguable and at risk of being nugatory, granting the stay until the appeal's determination.
Transaction Type
Other
Issues
- The applicant challenges the High Court's decision to proceed with the class action application without reviewing the replying affidavits submitted by the applicant and the 3rd respondent. It asserts this omission breached procedural fairness and natural justice principles.
- The applicant questions the High Court's authority to issue substantive and dispositive orders on a date originally scheduled for a procedural mention. It contends this was an improper use of judicial power and prejudged the merits of the case.
- The applicant argues that the High Court's ruling amounted to a violation of its constitutional right to a fair hearing under Article 50 of the Kenyan Constitution. It claims the court failed to afford due process by not hearing the parties before granting substantive orders.
- The applicant contends that the High Court erred by granting the suit to proceed as a class action without affording the applicant and the 3rd respondent an opportunity to be heard. It argues that the court's decision violated the constitutional right to a fair hearing and was made without considering the replying affidavits filed by the parties.
Holdings
- The court granted the application for injunction and stay of proceedings until the hearing and determination of the intended appeal, with costs to abide by the appeal's outcome.
- The court determined that the applicant's intended appeal is not frivolous and raises arguable points, including whether the High Court erred by granting the class action without hearing the parties and whether constitutional rights were violated.
- The court concluded that the intended appeal risks being rendered nugatory due to the potential for astronomical financial liability and lack of recovery prospects if the class action proceeds in the High Court before the appeal.
Remedies
The court granted the application for an injunction and stay of proceedings until the hearing and determination of the intended appeal. Costs of the application shall abide the outcome of the appeal.
Legal Principles
- The court emphasized that the High Court violated the applicant's constitutional right to be heard by granting the class action application without affording the parties an opportunity to be heard, contravening principles of natural justice.
- The Court of Appeal granted an interim injunction and stay of proceedings pending appeal, relying on the applicant's arguable appeal and the risk of the appeal being rendered nugatory if the High Court's order proceeded as a class action.
Precedent Name
- Hashmuklal Virchand Shah & 2 Others v. Investment & Mortgage Bank Ltd
- Stanley Kang'ethe Kinyanjui v. Tony Ketter & 5 Others
- Thomas Maseko Opiyo & another v. Alfred Oyoko Olunje
- Republic v. Kenya Anti-Corruption Commission & 2 Others
- Central Bank of Kenya Deposit Protection Fund Board v. Uhuru Highway Development Ltd & Others
- Reliance Bank Ltd v. Norlake Investments Ltd
- Raymond Ruto & 5 others v. Stephen Kibowen
- Katanagi Developers Ltd v. Prafula Enterprises Ltd & Another
Cited Statute
- Court of Appeal Rules, 2022
- Constitution of Kenya, 2010
Judge Name
- J M Mativo
- H M Okwengu
- K M'Inoti
Passage Text
- Among the issues that the applicant has identified as deserving to be heard and determined by this Court include whether the High Court erred by granting the application for the suit to proceed as a class action without hearing the parties; whether the High Court erred by granting the application without considering the replying affidavits on record; whether the applicant's constitutional right to a fair hearing was violated; and whether the High Court erred by granting substantive and dispositive orders on a date scheduled for a mention.
- In the circumstances of this application, we are satisfied that the applicant has met both requirements under rule 5(2)(b) of the Court of Appeal Rules. Accordingly, we grant the application dated 19th January 2023 until the hearing and determination of the intended appeal.
- It is common ground between all the parties that to warrant an order of injunction or stay of proceedings, the applicant must establish that its intended appeal is arguable and that unless the orders sought are granted, the appeal will be rendered nugatory if it succeeds (see Stanley Kangethe Kinyanju v. Tony Ketter & Others [2013] eKLR).
Damages / Relief Type
- Injunction to stop the applicant and 3rd respondent from suspending SIM cards of subscribers.
- General, aggravated, and exemplary damages; Kshs 10,000 per day for each subscriber whose SIM card was suspended; Kshs 2,000 per day compensation for suspended subscribers.
- Declarations that the applicant and 3rd respondent were in breach of contract and privacy rights of subscribers.