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Court of AppealDismissedCivil Application No. NAI 364 of 2014· [2016] KECA 635 (KLR)

R K K v M W K & 2 others

Court of Appeal
22 April 2016
JMJ. W. MweraGKG. B. M. KariukiPhilomena Mbete MwiluP. M. Mwilu
2,343 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to pause orders barring a man from running two schools, because winning later would still leave everything recoverable.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi (Mwera, G.B.M. Kariuki and Mwilu, JJ.A) on a notice of motion dated 19th March 2015 brought by the applicant, R K K, under rule 5(2)(b) of the Court of Appeal Rules, pending his appeal against interim injunctive orders issued by Ougo, J of the High Court on 22nd September 2014 in H.C.C.C. No. 122 of 2013. The underlying suit, brought by the 1st respondent and her two daughters, alleges that the applicant, who cohabited with the 1st respondent and was involved in her school business, fraudulently transferred school motor vehicles to himself and interfered with the schools' assets, workers and management. The applicant sought stay of the restraining orders, direction of school fees into a joint-signatory account or appointment of a manager, and payment of his salary of Ksh.300,000 per term. Counsel for the applicant argued the appeal was arguable and would be rendered nugatory; the 1st respondent countered that stay of a restraining order was unworkable, that prayers (f) and (g) sought a mandatory injunction not available under rule 5(2)(b), and that the orders preserved the business for all parties. The court restated the settled rule 5(2)(b) principles, following Butt v Rent Restriction Tribunal: arguability plus nugatory-ness. It found the appeal arguable but held that staying the orders would defeat the substratum of the suit and that, if successful, the applicant's appeal would not be rendered nugatory since the vehicles and business would remain available. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether the intended appeal is arguable under rule 5(2)(b)

Holding

The appeal is arguable, as the memorandum of appeal raises questions whether the learned Judge applied the correct principles and took into account relevant considerations

Reasoning

The memorandum of appeal disclosed issues for determination, including whether the High Court judge applied the correct principles and considered relevant matters. The court applies the settled rule that a solitary arguable point suffices, without delving into the merits so as not to prejudice the appeal. Arguability was therefore met, but this alone does not entitle the applicant to stay.

p. 4
02

Whether the appeal would be rendered nugatory if stay is not granted

Holding

It would not: staying the order restraining transfer of the vehicles would defeat the substratum of the pending suit, and the schools and business would remain available if the applicant succeeds

Reasoning

Staying the restraining order would hand the applicant a carte blanche over the disputed vehicles and defeat the substratum of the High Court suit. If the applicant succeeds, the vehicles remain inhibited by court order and the business remains available; no mismanagement of the schools was alleged, and any party may apply if impropriety in management is ascertained during the appeal.

p. 4
03

Whether mandatory injunctive relief can be granted under rule 5(2)(b)

Holding

Prayers (f) and (g) sought mandatory injunctions, which the rule does not provide for; this contention was raised by the 1st respondent and not adjudicated as a holding

Reasoning

The 1st respondent's counsel argued that prayers directing the doing of things amount to mandatory injunctions for which rule 5(2)(b) makes no provision. The court did not expressly rule on this as a separate holding, but declined the application in its entirety, with the orders sought effectively unavailable under the rule.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must first satisfy the court that the appeal is arguable, and secondly that if the order sought is not granted the appeal, if successful, would be rendered nugatory
  • A single arguable point suffices to satisfy the arguability threshold
  • In assessing arguability the court will not delve into the merits of the appeal; an arguable appeal is not necessarily one that must succeed
  • Rule 5(2)(b) discretionary relief balances the successful litigant's fruits of judgment against the aggrieved litigant's right of appeal

Court orders

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  1. 1.Application dated 19th March 2015 dismissed with costs to the respondents
On appeal from
High Court of Kenya, Nairobi
H.C.C.C. No. 122 of 2013
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, "R K K v M W K & 2 others", Case Analysis (2016). Civil Application No. NAI 364 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/635/eng@2016-04-22

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