Al Ghurair Printing and Publishing Company LLC v Coalition for Reforms and Democracy & 2 others [2017] KECA 680 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Test for applications under Rule 5(2)(b) of the Court of Appeal Rules
The applicant must satisfy the twin principles of arguability and nugatory-ness before the court exercises its discretion
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.
Whether the intended appeal would be rendered nugatory
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
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.
Legal principles established
#- 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
#- 1.The application is dismissed
- 2.No orders as to costs
- 3.The applicant to file and serve the intended appeal within 7 days from the date of the decision
- 4.The appeal to be heard on a priority basis
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.