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Court of AppealDismissedCivil Appli. NAI No. 154 of 2008· [2008] KECA 100 (KLR)

Samson Keengu Nyamweya& 3 others v Mohamed Hatimy& 3 others [2008] KECA 100 (KLR)

Court of Appeal of Kenya
24 October 2008
ROR.S.C. OmoloPhilip Kiptoo TunoiP.K. TunoiEOE.O. O'Kubasu
3,693 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stop rival football officials running the KFF, because the applicants proved only an arguable appeal, not that refusing relief would make it pointless.

What this practically means

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Executive summary

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This was an application under rule 5(2)(b) of the Court of Appeal Rules by Samson Keengu Nyamweya, Twaha Mbarak, Peter Ochiel and the Kenya Football Federation (KFF) seeking an injunction pending an intended appeal against a ruling of Waweru, J. delivered on 6th June 2008 in H.C.C.C. No. 609 of 2007. The underlying dispute concerned the leadership of KFF, a society registered under the Societies Act. On 16th May 2008 the learned Judge had granted the applicants interlocutory injunctions after finding they were prima facie the duly elected officials of KFF; on review, however, he set aside those orders, holding that the respondents were in actual control of KFF, were recognised by FIFA, and that Kenya risked being banned from international football if the respondents were hindered. Before the Court of Appeal, the applicants argued that the Judge misapprehended the facts and that the balance of convenience favoured the registered officials. The respondents maintained that the status quo should be preserved as FIFA did not recognise the applicants. The Court restated the settled rule 5(2)(b) test: an applicant must demonstrate both that the appeal is arguable and that its success would be rendered nugatory if relief is refused, expressly clarifying that the Giella v Cassman Brown principles do not apply to rule 5(2)(b) applications. Although the appeal could be described as arguable, the Court held that the nugatory limb failed: the respondents had controlled KFF for a year or more, FIFA recognised them, elections were due in December 2008, and the intended appeal had yet to be lodged. The application was dismissed with costs to the respondents.

Key legal issues

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01

Test for relief under rule 5(2)(b) of the Court of Appeal Rules

Holding

The twin requirements of an arguable appeal and nugatory consequences must both be demonstrated; the applicants failed the second limb.

Reasoning

The Court restated the settled principles governing rule 5(2)(b) applications, citing prior decisions of the Court. Although the applicants' intended appeal could be described as arguable, the respondents had been in actual control and management of KFF for the past year or so, were recognised by FIFA, and the applicants were not. Granting the injunction risked Kenya being banned from FIFA-controlled activities, and the appeal could not be heard before the December 2008 elections, rendering the exercise futile.

p. 7
02

Whether the Giella principles apply to rule 5(2)(b) applications

Holding

They do not; the rule 5(2)(b) test is distinct.

Reasoning

Counsel for the respondents urged the Giella v Cassman Brown interlocutory injunction principles, but the Court expressly stated that those principles do not govern applications under rule 5(2)(b), which has its own established two-limb test of arguability and nugatory effect.

p. 6

Legal principles established

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  • An applicant under rule 5(2)(b) of the Court of Appeal Rules must show, first, that the appeal or intended appeal is arguable (not frivolous), and secondly, that if the orders sought are refused and the appeal succeeds, the result would be rendered nugatory.
  • The Giella v Cassman Brown principles do not govern applications under rule 5(2)(b); the two-part rule 5(2)(b) test applies instead.

Court orders

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  1. 1.The notice of motion dated 25th June, 2008 is dismissed with costs to the respondents

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)
  • Societies Actnull
  • Civil Procedure RulesOrder XLIV Rule 1(1)
  • Civil Procedure RulesOrder XXIX

Cases cited (5)

  • GIELLA V. CASSMAN BROWN & CO. LTD.
    [1973] E.A. 358
  • GITHUNGURI V. JIMBA CREDIT CORPORATION LTD. (No. 2)
    (1988) KLR 838
  • J.K. INDUSTRIES LTD. VS. KENYA COMMERCIAL BANK LIMITED
    (1982-88) 1 KAR 1638
  • RELIANCE BANK LIMITED VS. NORLAKE INVESTMENTS LTD.
    [2002] 1 E.A. 218
  • EXCLUSIVE ESTATES VS. KENYA POSTS & TELECOMMUNICATIONS CORPORATION AND ANOTHER
    [2005] 1 E.A. 53
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 609 of 2007
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for injunction pending an intended 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, "Samson Keengu Nyamweya& 3 others v Mohamed Hatimy& 3 others [2008] KECA 100 (KLR)", Case Analysis (2008). Civil Appli. NAI No. 154 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/100/eng@2008-10-24

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