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Court of AppealAllowedCivil Application No. Nai. 268 of 2001 (147/2001 UR)· [2001] KECA 125 (KLR)

Dr. John Kekovole & 2 others v Jonathan Wabala

Court of Appeal
9 November 2001
ROR.S.C. OmoloPhilip Kiptoo TunoiP.K. TunoiASA.B. Shah
1,395 words in judgment
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The bottom line

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Kenya's Court of Appeal paused a ruling that had paralysed the Family Planning Association of Kenya, finding the wrong parties may have been sued.

What this practically means

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Executive summary

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This is the Court of Appeal's reasoned ruling on the applicants' notice of motion for stay of execution pending an intended appeal against a High Court ruling of 31st July 2001 (Birech, Commissioner of Assize) in H.C.C.C. No. 128 of 2001 at Kisumu. On 17th September 2001 the Court granted a stay of the High Court order and of further proceedings in the suit, and on 9th November 2001 delivered these reasons. The dispute arose within the Family Planning Association of Kenya, an NGO registered under the Non-Governmental Organizations Co-ordination Act, after the respondent challenged his removal from office and nullification of his election as Busia Branch Chairman. The High Court had granted restraining orders preventing the Association from convening meetings, holding elections or conducting business without the respondent. The Court of Appeal held it arguable that neither the applicants nor the Association had been properly sued, since the Association, a body corporate under section 12(3) of the Act, was not named as a party and the plaint's capacity description was unexplained. It also held that the disputed adoption of the Code of Conduct for Volunteers could not be decided on affidavits alone. On the stay criteria, the Court found the balance of convenience favoured the Association, whose functions had been nearly paralysed, and that the respondent would suffer no pecuniary loss, so the appeal would not be rendered nugatory without a stay. The stay orders were confirmed, with costs in the intended appeal.

Key legal issues

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01

Proper parties to the suit - whether the applicants or the Association were properly sued

Holding

It was arguable whether the applicants or the Association were properly sued, justifying stay

Reasoning

The plaint stated the defendants were sued in official capacities as 'specified hereinafter' but no specification was given. The Association was a body corporate under section 12(3) of the NGOs Co-ordination Act capable of suing and being sued in its own name, yet it was not made a party, leaving uncertainty as to what injunction the applicants were to obey.

p. 2
02

Balance of convenience and nugatory-ness in the stay application

Holding

The balance of convenience tilted in favour of the Association and the respondent's success on appeal would not be rendered nugatory without a stay

Reasoning

The respondent would not suffer pecuniary damage by waiting, as he would simply revert to his positions as Busia Branch Chairman and Delegate. Conversely, restraining orders had almost paralysed the Association's business, and an important Association ought to function normally for the general good of Kenyans.

p. 3
03

Grant of ex-parte far-reaching interim orders

Holding

The court deprecated the making of far-reaching orders on an interim basis ex-parte

Reasoning

The Commissioner of Assize granted an ex-parte interim order on 24th April 2001 which stopped the Association's meetings scheduled for 26th and 27th April 2001, almost bringing its business to a halt. The Court of Appeal cautioned that such orders ought not, as far as practicable, be made without hearing the other side.

p. 2

Legal principles established

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  • Far-reaching ex-parte interim orders should not be made unless the other side has had an opportunity of being heard
  • Issues of fact such as adoption of a code of conduct cannot be decided on affidavits alone unless clearly admitted

Court orders

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  1. 1.Stay of the order of the High Court of Kenya at Kisumu made on 31st July 2001 in Civil Case No. 128 of 2001 pending the hearing and determination of the intended appeal
  2. 2.Stay of any further proceedings in the said suit pending the hearing and determination of the intended appeal
  3. 3.Costs to be in the intended appeal
On appeal from
High Court of Kenya at Kisumu
H.C.C.C. No. 128 of 2001
Jurisdiction invoked
Inherent jurisdiction of the Court of Appeal / Rule 5(2)(b) application for stay pending intended appeal (application for stay of execution pending hearing and determination of an appeal)

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, "Dr. John Kekovole & 2 others v Jonathan Wabala", Case Analysis (2001). Civil Application No. Nai. 268 of 2001 (147/2001 UR). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/125/eng@2001-11-09

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