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Court of AppealDismissedCivil Application No. 9 of 2018 (UR 8/18)· [2018] KECA 438 (KLR)

Dave Collince & another v Nick Mwendwa & 2 others [2018] KECA 438 (KLR)

Court of Appeal
26 July 2018
1,919 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 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

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Executive summary

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Muhoroni Youth Football Club, through its officials, applied under rule 5(2)(b) of the Court of Appeal Rules for an injunction restraining the Football Kenya Federation and the Kenya Premier League from relegating it to the national super league pending an intended appeal against a High Court ruling (Majanja, J., 22 January 2018) refusing conservatory orders. The dispute arose from FKF's February 2017 decision to relegate the club for non-compliance with club licensing guidelines later nullified by the Sports Disputes Tribunal and the High Court, after which the club was reinstated to the 2017 league but finished last and was relegated again. Although the respondents did not attend the hearing, the Court considered their replying affidavit opposing the application. Applying the settled twin test, the Court found the intended appeal arguable because it raised bona fide issues about the trial court's finding of no prima facie case. However, the Court held the appeal would not be rendered nugatory without the injunction, since the club's losses from the short-lived relegation were quantifiable in damages; an applicant must establish both limbs, not just one. The balance of convenience also favoured refusal: both leagues were approaching mid-season, two promoted teams had honoured fixtures at considerable expense, and excluding them without a hearing would disrupt the leagues and prejudice non-parties. Unlike the Shabana FC precedent relied on by the applicant, the relief sought came too late in the season. The application was dismissed, with costs to abide the outcome of the intended appeal.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

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.

Reasoning

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.

p. 2
02

Whether the intended appeal would be rendered nugatory without the injunction

Holding

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.

Reasoning

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.

p. 2
03

Whether the balance of convenience favoured granting the injunction

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The notice of motion under rule 5(2)(b) is dismissed
  2. 2.The costs of the application shall abide the outcome of the intended appeal

Authorities

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Legislation

  • Societies Act
  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (8)

  • Nick Mwendwa & Another v. Sam Nyamweya
    CA No. Nai. 223 of 2017
  • Peter Omwando v Nick Mwendwa & Another
    SDT Pet No. 25 of 2016
  • Kenya Tea Growers Association & Another v. Kenya Planters & Agricultural Workers Union
    CA No. Nai. 72 of 2001
  • Stanley Kangethe Kinyanjui v. Tony Ketter & 5 Others
    CA No. 31 of 2012
  • Ecomil Pasag Co Ltd & 2 Others v. UAP Insurance Co Ltd
    [2017] eKLR
  • Republic v. Kenya Anti-Corruption Commission & 2 Others
    [2009] KLR 31
  • Oraro & Rachier Advocates v. Co-operative Bank of Kenya Ltd
    [2000] eKLR
  • Reliance Bank Ltd v. Norlake Investments Ltd
    (2002) 1 EA 227
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

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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, "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.