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Court of AppealDismissedCivil Application No. 211 of 2009· [2010] KECA 402 (KLR)

Harji Karsan Patel v Kunverji Naran KeraiI & 2 others [2010] KECA 402 (KLR)

Court of Appeal
19 February 2010
2,063 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stop a temple from changing its celebration dates, because the appeal wasn't strong enough and no permanent harm would result.

What this practically means

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Executive summary

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Harji Karsan Patel, a member and working-committee member of Shree Cutch Satsang Swaminarayan Mandir, challenged resolutions made on 5th August 2004 and ratified by an extraordinary general meeting on 8th August 2004 which changed the Society's annual anniversary celebrations from 25th and 26th December to 12th December each year. His injunction application in the High Court (H.P.G. Waweru, J.) was dismissed on 8th/9th April 2009 on the ground that he had not shown a prima facie case with a probability of success. He filed notice of appeal and moved the Court of Appeal under Rules 5(2)(b) and 42 of the Court of Appeal Rules for an injunction pending the intended appeal, seeking to restrain the respondents from holding the Vishranti Bhuvan celebrations on any date other than 25th and 26th December. The Court restated the settled twin principles: the applicant must show the intended appeal is arguable and that its success would be rendered nugatory if relief is refused. Noting, without deciding, that the Society's Constitution fixed no notice period or mode of communication, did not entrench the celebration date, and contained no advice requirement, and that the applicant attended and participated in both meetings, the Court was not persuaded the appeal was arguable. Further, any success would simply revert the celebration dates, so no nugatory result would follow. Weighing the applicant's dented personal faith against the position of the many members who endorsed or accommodated the change under Sections 3A and 3B of the Appellate Jurisdiction Act, the Court dismissed the motion with costs to the respondents. The underlying intended appeal remains to be heard by another bench.

Key legal issues

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01

The twin principles governing applications under Rule 5(2)(b) of the Court of Appeal Rules

Holding

The applicant must satisfy both the arguability and the nugatory-principle limbs; failure on either disposes of the application.

Reasoning

The Court restated the settled principles, citing Reliance Bank Ltd vs Norlake Investments Ltd and Caltex Oil Company (Kenya) Ltd vs Evanson Njiru Wanjihia, and noted that in considering such applications it is also guided by Sections 3A and 3B of the Appellate Jurisdiction Act as amended in July 2009. Both limbs must be satisfied for the relief to be granted.

p. 3
02

Whether the intended appeal challenging the resolutions changing the date of the Society's anniversary celebrations was arguable

Holding

The Court was not persuaded the intended appeal was arguable, noting undisputed facts undermining the applicant's complaints on notice and constitutional breach.

Reasoning

The Court noted without deciding that the Society's Constitution specified no notice period or mode of communication for meetings, the date of celebrations was not entrenched, no advice provision existed, and the applicant attended and fully participated in both the working committee meeting and the extraordinary general meeting that passed and ratified the resolutions. On those facts it was not persuaded the appeal was arguable.

p. 4
03

Whether the intended appeal would be rendered nugatory if the injunction was refused

Holding

The Court found no nugatory effect: if the appeal eventually succeeded the celebration date would simply revert to the original dates.

Reasoning

Applying Sections 3A and 3B of the Appellate Jurisdiction Act, the Court weighed the applicant's dented personal faith for the interim years against the position of the many faithfuls who endorsed or accommodated the change. Since success would merely restore the December dates, no irreversible harm would result, so the nugatory limb failed.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate first that the intended appeal is arguable, that is not frivolous, and second that if the appeal succeeded the results would be rendered nugatory if the application for stay is refused.

Court orders

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  1. 1.The notice of motion dated 15th July 2009 seeking an injunction pending the hearing and determination of the intended appeal is dismissed
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Societies ActChapter 108 Laws of Kenya
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 42
  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B

Cases cited (2)

  • Reliance Bank Ltd. vs. Norlake Investments Ltd.
    [2002] 1 EA 227 (CAK)
  • Caltex Oil Company (Kenya) Ltd. now renamed Total Marketing Kenya Ltd. vs. Evanson Njiru Wanjihia
    Civil Application No. Nai. 190 of 2009
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1025 of 2004
Jurisdiction invoked
Rules 5(2)(b) and 42 of the Court of Appeal Rules; Sections 3A and 3B of the Appellate Jurisdiction Act

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, "Harji Karsan Patel v Kunverji Naran KeraiI & 2 others [2010] KECA 402 (KLR)", Case Analysis (2010). Civil Application No. 211 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/402/eng@2010-02-19

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