Dave Collince & another v Nick Mwendwa & 2 others [2018] KECA 438 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop Muhoroni Youth FC's relegation, confirming that applicants must prove both an arguable appeal and that damages cannot compensate them.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
The Court found the intended appeal arguable, since the applicant wished to argue that the trial court erred in finding no prima facie case where its poor performance flowed from wrongful relegation and late reinstatement.
The Court applied the settled test that an arguable appeal need not be one bound to succeed; it suffices that it raises even a single bona fide issue worthy of full consideration. On that standard, the contention that the trial judge erred in finding no prima facie case despite the nullification of the club licensing guidelines qualified as arguable.
Whether the intended appeal would be rendered nugatory without the injunction
The Court held the appeal would not be rendered nugatory because the applicant's losses from the short-lived relegation were quantifiable in monetary terms and compensable by damages.
Applying the nugatory test, the Court reasoned that an appeal is rendered nugatory only if what is sought to be stopped is irreversible or cannot be reasonably compensated in damages. The applicant's losses from the brief relegation, if proved, were monetary and therefore compensable, so the second limb of the rule 5(2)(b) test failed.
Whether the balance of convenience favoured granting the injunction
The balance of convenience favoured refusal: the leagues were mid-season, promoted teams had invested in fixtures, and disturbing the leagues would prejudice non-parties without a hearing.
Both the premier and national super leagues were approaching mid-season with 18 teams having played many matches at heavy investment. Two promoted teams could not be excluded 'by a stroke of the pen' without even a hearing. Unlike the Shabana FC Sports Tribunal decision relied on by the applicant, which came within a month of relegation, the relief sought now would disrupt both leagues.
Legal principles established
#- Under rule 5(2)(b), an applicant must satisfy both limbs - an arguable appeal and that the appeal will be rendered nugatory if the injunction is not granted; satisfying only one limb is insufficient.
- An arguable appeal need not be one that must succeed; it is one that raises even a single bona fide issue worthy of full consideration.
- An appeal is rendered nugatory only where what is sought to be stopped is irreversible or cannot be reasonably compensated by an award of damages.
- The Court of Appeal is entitled to consider the balance of convenience in determining whether to grant an injunction under rule 5(2)(b).
Court orders
#- 1.The notice of motion under rule 5(2)(b) is dismissed
- 2.The costs of the application shall abide the outcome of the intended appeal
- On appeal from
- High Court at Kisumu
- HCCC No. 28 of 2017
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for injunction pending the hearing and determination of an intended appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dave Collince & another v Nick Mwendwa & 2 others [2018] KECA 438 (KLR)", Case Analysis (2018). Civil Application No. 9 of 2018 (UR 8/18). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/438/eng@2018-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.