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Court of AppealDismissedCivil Application No. NYR. 63 of 2015 (UR 37/15)· [2016] KECA 672 (KLR)

Kigumo Sub-County Alcoholic Drinks Control Committee v Kibao Savings & Credit Co-Operative Society Limited & 6 Others [2016] KECA 672 (KLR)

Court of Appeal of Kenya
6 April 2016
2,285 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to block liquor merchants from trading because a temporary court order that expired with 2015 licences could not harm the committee's appeal.

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 Nyeri (Waki, Koome and Kiage, JJA) on a Notice of Motion dated 18th December 2015 brought under Rule 5(2)(b) of the Court of Appeal Rules, 2010. The applicant, the Kigumo Sub-County Alcoholic Drinks Control Committee, a creature of the Murang'a County Alcoholics Drinks Act, sought a stay of execution of, or vacation of, a High Court order (Waweru J, 20th November 2015) in Murang'a H.C. Misc. App. No. 63 of 2015 directing that leave granted to liquor merchants to seek certiorari against the committee's licence-rejection decision should operate as a stay, maintaining the status quo of continued trading pending the substantive judicial review motion. Applying the twin principles synthesised in Stanley Kangethe Kinyanjui v Tony Ketter, the court found the intended appeal arguable on its seven draft grounds, since they raised prima facie questions on the judicious exercise of the trial judge's discretion. However, the nugatory limb failed: the status quo order was reasonably confined to the 2015 licence cycle, and courts are not in the business of issuing trade licences; if the committee followed the law in processing 2016 applications, the appeal's success would not be rendered nugatory. The application was dismissed with costs. The ruling is interlocutory and does not disturb the High Court decision; it binds no final determination, but restates the Rule 5(2)(b) twin-principle test that both arguability and nugatory-ness must be satisfied.

Key legal issues

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01

Arguability of the intended appeal

Holding

The draft memorandum raised prima facie issues of law, including whether the High Court discretion was judiciously exercised, so the first hurdle was met

Reasoning

The court examined the 7 grounds in the draft memorandum and found they raised prima facie issues of law, notably whether the trial judge exercised discretion judiciously. The court declined to assess whether the appeal would serve a useful purpose given the expiry of the licences, holding that was not for the interlocutory stage. The applicant therefore surmounted the first hurdle.

p. 4
02

Whether the intended appeal would be rendered nugatory

Holding

No - the High Court order merely maintained a status quo limited to the 2015 licence cycle; courts cannot be said to have issued 2016 trade licences, and if the committee follows the law in processing 2016 applications the appeal's success would not be rendered nugatory

Reasoning

The court held the status quo order applied only while the 2015 licences remained valid, expiring 31st December 2015. Interpreting it as extending into 2016 would amount to saying courts issue trade licences, which they do not. The committee retained full lawful functions for 2016 licensing; following the law and making lawful decisions could not render the appeal nugatory.

p. 4
03

Whether both limbs of the Rule 5(2)(b) test must be satisfied

Holding

Yes - both twin principles must be satisfied; failing the nugatory limb, the application must fail

Reasoning

Adopting the Kinyanjui v Ketter synthesis, the court reaffirmed that the applicant must satisfy the court on both twin principles. Having found the appeal arguable but not nugatory if interim orders were denied, the court dismissed the application. This restatement binds future Rule 5(2)(b) applicants.

p. 4

Legal principles established

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  • Under Rule 5(2)(b) an applicant must satisfy both twin principles - an arguable appeal and that the appeal would be rendered nugatory absent interim relief - for the application to succeed
  • A single bona fide arguable ground of appeal suffices for the arguability limb, but an arguable appeal need not necessarily succeed
  • In a Rule 5(2)(b) application the court must not make definitive or final findings of fact or law that may embarrass the hearing of the main appeal
  • Nugatory status quo orders of limited temporal scope (here, co-extensive with the validity of 2015 trade licences) do not render an intended appeal nugatory

Court orders

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  1. 1.The Notice of Motion dated 18th December 2015 is dismissed
  2. 2.The applicant shall pay the costs of the application

Authorities

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Legislation

  • Court of Appeal Rules, 2010Rule 5(2)(b)
  • Court of Appeal Rules, 2010Rule 75
  • The Murang'a County Alcoholics Drinks ActSection 9
  • The Murang'a County Alcoholics Drinks ActSection 16(3)(b)
  • Co-operative Societies Act

Cases cited (9)

  • Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 Others
    [2013] eKLR
  • Ruben & 9 Others v Nderitu & Another
    (1989) KLR 459
  • Halai & Another v Thornton & Turpin (1963) Ltd.
    (1990) KLR 365
  • David Morton Silverstein v Atsango Chesoni
    Civil Application No. Nai 189 of 2001
  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd
    Civil Application No. Nai 345 of 2004
  • Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No. 124 of 2008
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227
  • International Laboratory for Research on Animal Diseases v Kinyua
    [1990] KLR 403
  • Mbogo vs. Shah
    [1968] EA 93
On appeal from
High Court of Kenya at Murang'a
H. C. Misc. App. No. 63 of 2015
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2010 (interlocutory stay/injunction pending intended appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kigumo Sub-County Alcoholic Drinks Control Committee v Kibao Savings & Credit Co-Operative Society Limited & 6 Others [2016] KECA 672 (KLR)", Case Analysis (2016). Civil Application No. NYR. 63 of 2015 (UR 37/15). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/672/eng@2016-04-06

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