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Court of AppealDismissedCivil Application No. 211 of 2015· [2016] KECA 615 (KLR)

Ali Abdalla Duhmy & 3 others v Mohamed Abdisheikh & 5 others [2016] KECA 615 (KLR)

Court of Appeal
22 April 2016
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'Inoti
1,469 words in judgment
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The bottom line

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The Court of Appeal refused to stop a school society takeover because the takeover had already happened, and injunction applications fail once the feared event occurs.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Malindi (Makhandia, Ouko and M'Inoti, JJA) on an application under Rule 5(2)(b) of the Court of Appeal Rules for an injunction pending an intended appeal. The applicants, representatives of the members of Nur Muslim School Society, had lost a suit before Chitembwe, J. of the High Court at Malindi, who on 30th June 2015 dismissed their claim to the office bearership of the school and vacated interim injunctions. The respondents promptly took over the school, changed the bank account signatories, and assumed its assets. The applicants sought to restrain them pending an intended appeal, contending that the impugned judgment was a nullity because it partly rested on a suit (Nairobi HCCC No. 468 of 2006) that they claimed had been dismissed yet was treated as consolidated. On the arguability limb, the court noted there was no proof that the earlier suit had been dismissed and that the allegation surfaced only in oral submissions, but nevertheless deemed the intended appeal arguable. On the nugatory limb, however, the applicants failed: the takeover had already occurred, parents had withdrawn children, and the madrasa had closed, so there was nothing left to injunct. Applying the twin-limb Rule 5(2)(b) test, the court dismissed the application with costs to the respondents. The decision does not disturb the High Court judgment, which remains intact pending any substantive appeal.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

Though the court had reservations about proof that the consolidated suit No. 468 of 2006 had been dismissed, it deemed the point arguable for purposes of the application

Reasoning

The applicants alleged the judgment was founded on a dismissed suit, but produced no proof of dismissal and raised the point only in oral submissions. Applying the burden of proof under Section 107 of the Evidence Act, the court found the onus unmet, yet indulgently deemed the point arguable.

p. 3
02

Whether the intended appeal would be rendered nugatory absent an injunction

Holding

The applicants failed on this limb because the respondents had already taken over the school, its bank accounts and assets, leaving nothing to injunct

Reasoning

Bank records showed the signatories had been changed to the respondents, and the applicants' own affidavit showed parents had withdrawn children and the madrasa had closed. The court held that where the feared takeover has already materialised, an injunction pending appeal serves no purpose.

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the court on both the arguability limb and the nugatory-impact limb; failure on one is fatal
  • An arguable appeal is not necessarily one that will succeed; it is one that is not frivolous
  • 'Nugatory' means more than worthless; it may mean futile or invalid, and where the feared event has already occurred there is nothing to injunct

Court orders

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  1. 1.The application for injunction pending the lodging, filing, hearing and determination of an intended appeal is dismissed
  2. 2.Costs of the application to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Evidence ActSection 107

Cases cited (2)

  • Stanley Kangethe Kinyanjui v Tony Ketter & 5 Others
    [2013] eKLR
  • Isaac Gathungu Wanjohi & another v Attorney General & 6 others
    [2013] eKLR
On appeal from
High Court of Kenya at Malindi
H.C.C.C. No. 14 of 2012 (consolidated with Nos. 40 of 2009 and 468 of 2006)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Ali Abdalla Duhmy & 3 others v Mohamed Abdisheikh & 5 others [2016] KECA 615 (KLR)", Case Analysis (2016). Civil Application No. 211 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/615/eng@2016-04-22

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