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Court of AppealDismissedCivil Application No. NAI. 25 of 2017 (UR 19/17)· [2017] KECA 680 (KLR)

Al Ghurair Printing and Publishing Company LLC v Coalition for Reforms and Democracy & 2 others [2017] KECA 680 (KLR)

Court of Appeal of Kenya
10 March 2017
1,915 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to block a fresh ballot-printing tender, ruling that public interest in holding elections on time outweighed the losing bidder's concerns.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Visram, Karanja and J. Mohammed, JJ.A) on an application under Rule 5(2)(b) of the Court of Appeal Rules by Al Ghurair Printing and Publishing Company LLC seeking an injunction restraining the IEBC from commencing a fresh procurement process and a stay of execution of the High Court judgment of Odunga, J. dated 13th February 2017, which quashed the award to Al Ghurair of Tender No. IEBC/01/2016-2017 for ballot papers, result declaration forms and poll registers. The High Court had granted judicial review orders sought by CORD and directed IEBC to restart the tender in compliance with the Constitution, the Public Procurement and Asset Disposal Act and electoral laws, with each party bearing its own costs. The Court of Appeal restated the twin principles governing Rule 5(2)(b) applications: the applicant must show an arguable appeal and that the appeal would be rendered nugatory absent the orders. Counsel agreed, and the Court concurred, that the intended appeal was arguable. On the nugatory limb, the Court found the appeal would not be rendered nugatory: the applicant could participate in the fresh tender, had not demonstrated its losses by affidavit, and had an alternative remedy in damages. With the general election scheduled for 8th August 2017, the balance of convenience favoured refusal. The application was dismissed with no orders as to costs, with directions that the intended appeal be filed and served within 7 days and heard on a priority basis.

Key legal issues

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01

Test for applications under Rule 5(2)(b) of the Court of Appeal Rules

Holding

The applicant must satisfy the twin principles of arguability and nugatory-ness before the court exercises its discretion

Reasoning

The court restated the settled principles from its prior decisions: the court has unfettered discretion, but it must be exercised on the basis that the intended appeal is arguable (not frivolous) and that, if stay or injunction is refused and the appeal later succeeds, the appeal would be rendered nugatory or ineffective. Both limbs must be established.

p. 3
02

Whether the intended appeal would be rendered nugatory

Holding

It would not, because the applicant can participate in the fresh tender, losses were not demonstrated by affidavit, damages are an adequate alternative remedy, and the pending general elections made refusal the balance of convenience

Reasoning

The court weighed the competing claims on the case's own facts. It found the applicant could still participate in fresh tendering; losses were not demonstrated by affidavit; damages remained available; and with the general election scheduled for 8 August 2017, granting the orders would likely interfere with electoral preparations, so public interest favoured refusing the orders.

p. 4

Legal principles established

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  • An applicant under Rule 5(2)(b) must establish both an arguable appeal and that the appeal would be rendered nugatory if the orders sought are not granted
  • Whether an appeal will be rendered nugatory depends on whether the thing to be stayed is reversible or, if not, whether damages will reasonably compensate the aggrieved party

Court orders

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  1. 1.The application is dismissed
  2. 2.No orders as to costs
  3. 3.The applicant to file and serve the intended appeal within 7 days from the date of the decision
  4. 4.The appeal to be heard on a priority basis

Authorities

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Legislation

  • Constitution of Kenya
  • Public Procurement and Asset Disposal ActSection 34(1)
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (3)

  • Patrick Mweu Musimba -vs- Richard N. Kalembe Ndile & 3 Others
    [2013] eKLR
  • Reliance Bank Ltd -vs- Norlake Investments Limited
    (2000) 1 EA 227
  • Stanley Kangethe Kinyanjui -vs- Tony Ketter & 5 Others
    [2013] eKLR
On appeal from
High Court of Kenya at Nairobi
Misc. Application No. 637 of 2016
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, "Al Ghurair Printing and Publishing Company LLC v Coalition for Reforms and Democracy & 2 others [2017] KECA 680 (KLR)", Case Analysis (2017). Civil Application No. NAI. 25 of 2017 (UR 19/17). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/680/eng@2017-03-10

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