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Court of AppealDismissedCourt of Appeal Application No. Nai. (rule 5(2)(b) application) - not stated in judgment· [2018] KECA 731 (KLR)

Havi v Law Society of Kenya & 3 others (Civil Application 28 (UR 26/2018) of 2018) [2018] KECA 731 (KLR)

Court of Appeal of Kenya
20 February 2018
2,975 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal let LSK elections proceed because stopping them was unnecessary — a successful appeal could simply reverse the results later.

What this practically means

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Executive summary

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This was a rule 5(2)(b) Court of Appeal application by Nelson Andayi Havi, an advocate seeking an injunction to stop the Law Society of Kenya elections scheduled for 22nd February 2018 pending his intended appeal against a High Court judgment (Mativo, J., 5th February 2018) that dismissed his petition challenging the constitutionality of the presidential-eligibility requirements in section 18 of the Law Society of Kenya Act. The High Court had held the impugned provisions constitutional and that Havi would attain fifteen years of practice only on 18th June 2018, after the scheduled election. Before the Court of Appeal were the two familiar rule 5(2)(b) questions: whether the intended appeal was arguable and whether it would be rendered nugatory absent an injunction. The Court, in a single unanimous judgment, found the appeal arguable, identifying bona fide issues on the computation of practice years, the relationship between sections 12 and 18 of the Act, limitations under Article 24, and alleged violations of Articles 27, 36, 38 and 47. However, it held the elections were reversible: if the appeal succeeded, the Court could nullify them and the applicant could contest a repeat election, with any delay compensable in damages. Stopping the elections would instead cause substantial losses to LSK and disrupt its statutory functions. The twin limbs of rule 5(2)(b) are cumulative, so the application failed on the second limb. The application was dismissed, the appeal was directed to be listed on priority basis, and, given the public-interest nature of the dispute within a compulsory-membership professional society, each party was ordered to bear its own costs.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The intended appeal was arguable because it raised legitimate and bona fide issues, including the computation of practice years, the constitutionality of section 18 of the LSK Act, and alleged violations of Articles 24, 27, 36, 38 and 47

Reasoning

The Court identified issues such as whether calendar or practice years count under section 18, whether section 18 denudes rights granted by section 12(e) and (f), whether the limitations pass muster under Article 24 and Commonwealth practice, and whether the rejection of the nomination without a hearing violated Article 47. These were not open and shut issues, so the appeal was arguable.

p. 5
02

Whether the intended appeal would be rendered nugatory if the LSK elections proceeded

Holding

The appeal would not be rendered nugatory because the elections are reversible: the Court can nullify them after a successful appeal and order a repeat election in which the applicant could contest, and any delay could be compensated by damages

Reasoning

The Court weighed the hardships: stopping the elections would cause losses to a subscription-financed professional society and disrupt statutory functions, whereas if the appeal succeeded the applicant could contest a bye-election, his primary prejudice being delayed ambition. The elections were not immutable, and damages or a fast-tracked appeal would mitigate any loss, so the nugatory test failed.

p. 5

Legal principles established

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  • An arguable appeal under rule 5(2)(b) is not one that must succeed; it is one that is not frivolous and raises even a single bona fide point deserving full consideration
  • A rule 5(2)(b) applicant must establish BOTH that the intended appeal is arguable AND that it will be rendered nugatory if an injunction is not granted; establishing only one limb is insufficient
  • Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party

Court orders

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  1. 1.Application for injunction pending appeal dismissed
  2. 2.Applicant's appeal to be listed for hearing on priority basis
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Law Society of Kenya Actsection 18(1)
  • Law Society of Kenya Actsection 18(2)
  • Law Society of Kenya Actsection 12(e) and (f)
  • Constitution of Kenya, 2010Article 166(3)
  • Constitution of Kenya, 2010Article 166(2)(a)
  • Constitution of Kenya, 2010Article 24
  • Constitution of Kenya, 2010Article 25
  • Constitution of Kenya, 2010Article 27
  • Constitution of Kenya, 2010Article 36(1)
  • Constitution of Kenya, 2010Article 38(2) and (3)(c)
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 165(6)
  • Advocates Actsection 24(1)
  • Advocates Actsection 24(2)
  • Court of Appeal Rulesrule 5(2)(b)
  • Fair Administrative Action Act

Cases cited (11)

  • Njuguna S. Ndungu v. EACC & 3 others
    [2015] eKLR
  • Jaribu Holdings Ltd v. Kenya Commercial Bank Ltd
    [2008] eKLR
  • Stanley Kang'ethe Kinyanjui v. Tony Ketter & 5 others
    [2013] eKLR
  • Gatirau Peter Munya v. Dickson Mwenda Kithijni & 2 others
    [2014] eKLR
  • Zacharia Okoth Obado v. Edward Akong'o Oyugi & 2 others
    [2014] eKLR
  • Chris Munga N. Bichage v. Richard Nyagaka Tongi & 2 others
    [2013] eKLR
  • Kenya Railways Corporation v. Edermann Properties Ltd.
    CA No. Nai. 176 of 2012
  • Kenya Airports Authority v. Mitu-Bell Welfare Society & another
    CA No. 114 of 2013
  • Reliance Bank Ltd v. Norlake Investments Ltd
    [2002] 1 EA 227
  • Nation Media Group & 2 others v. John Joseph Kamotho & 3 others
    CA No. 108 of 2006
  • Republic v. Kenya Anti-Corruption Commission & 2 others
    [2009] KLR 31
On appeal from
High Court of Kenya
Jurisdiction invoked
rule 5(2)(b) of the Court of Appeal Rules (interim injunction pending 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, "Havi v Law Society of Kenya & 3 others (Civil Application 28 (UR 26/2018) of 2018) [2018] KECA 731 (KLR)", Case Analysis (2018). Court of Appeal Application No. Nai. (rule 5(2)(b) application) - not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/731/eng@2018-02-20

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