Havi v Law Society of Kenya & 3 others (Civil Application 28 (UR 26/2018) of 2018) [2018] KECA 731 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
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
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.
Whether the intended appeal would be rendered nugatory if the LSK elections proceeded
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
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.
Legal principles established
#- 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
#- 1.Application for injunction pending appeal dismissed
- 2.Applicant's appeal to be listed for hearing on priority basis
- 3.Each party to bear its own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.