Sololo Outlets Ltd. & 3 others v National Social Security Fund & 4 others [1994] KECA 76 (KLR)

The court applied the settled Githunguri test: the applicant must demonstrate an arguable appeal and that its success would be rendered nugatory if interim relief is denied. Despite extensive submissions attacking the judge's treatment of the allegations of coercion and duress and his interpretation of sections 228 and 35, the court expressed no concluded view on those issues and held it was far from satisfied the test was met.

The court only gave a provisional view, as befits a rule 5(2)(b) application. Section 36 creates the Deposit Protection Fund Board as a statutory liquidator with the powers of an ordinary liquidator under Part VI of the Companies Act, and the court's provisional consideration of the statutory provisions and the securities suggested the judge's conclusion that the Board validly appointed the Receivers could stand.

The judge below struck out the claims against Post Bank, the Board and the Receivers for want of prior leave. The Court of Appeal examined sections 35 and 228 and provisionally favoured the judge's view, but expressly declined to make a concluded determination on an interlocutory rule 5(2)(b) application.

The applicants sought injunctions over 23 properties without any evidence of who owned them, most belonging to persons not party to the suit. Relying on order 1 rule 9 and Lord Diplock's statement in Gouriet, the court held declarations and relief cannot be made in respect of the rights of persons not represented in the litigation.

The judge had found no contemporaneous protest over nearly a year, that Jirongo was represented by advocates who never complained, and that the debenture was executed under seal before an advocate. The Court of Appeal held the judge had little choice faced with such allegations in an inter partes application and could not say on an interlocutory application whether he erred.