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Court of AppealDismissedCivil Application 386 of 2019· [2022] KECA 452 (KLR)

Squishy Drinks Limited v Kevian Kenya Limited

Court of Appeal
18 March 2022
MAM S Asike-MakhandiaDMD K MusingaPKP O Kiage
970 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 Squishy Drinks emergency relief because it pursued review and appeal of the same order simultaneously, which courts treat as forum shopping.

What this practically means

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Executive summary

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Squishy Drinks Limited, the appellant, moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules seeking stay of orders made by Kasango, J. in HCCC No. 114 of 2019, by which the Judge vacated an interim injunction previously granted in the appellant's favour and instead granted the respondent, Kevian Kenya Limited, an injunction restraining the appellant from using the SQUISHY trademark. The appellant also sought interim orders restraining alleged trademark infringement, restraining purported fraudulent transmission of the trademark registration, barring distribution of Squishy products to Uganda, and barring use of an individual's personal details on packaging. The respondent opposed, contending among other things that no notice of appeal had been served, that the appellant was in contempt of the order, and that the appellant had simultaneously filed an application for review of the same order in the High Court. The court applied the settled Rule 5(2)(b) test requiring an arguable appeal and a risk that the appeal would be rendered nugatory. It found dispositive the fact that the appellant had pursued review of the same order in the High Court, holding that this constituted hedging of bets, forum shopping and an abuse of process, since the law does not countenance simultaneous review and appeal against the same order. It further noted the risk that the review ruling had already been delivered, which would render appellate intervention ineffective, as courts should not issue orders in vain. The application was dismissed in its entirety with costs to the respondent. The substantive appeal remains to be heard; this ruling does not determine the merits of the trademark dispute.

Key legal issues

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01

Whether the Rule 5(2)(b) thresholds of arguable appeal and nugatory appeal were met

Holding

The application was dismissed; the court found the thresholds were not satisfied in circumstances where the appellant had also sought review of the same order

Reasoning

The court applied the settled two-limb test from Stanley Kangethe Kinyanjui v Tony Ketter. Rather than engaging deeply with arguability, it found dispositive the fact that the appellant had filed a review application in the High Court over the same order, making simultaneous determination by two courts a legal absurdity and rendering appellate intervention potentially ineffective.

p. 2
02

Whether simultaneous review and appeal constitutes abuse of process

Holding

Yes; pursuing review of and appeal against the same order simultaneously is forum shopping and an abuse of process that disentitles the applicant to Rule 5(2)(b) relief

Reasoning

The court held that entertaining the stay application while the High Court was seised of a review of the same order would result in the same issue being determined simultaneously by two courts. The law does not countenance this, and the risk that the review ruling had already been delivered made appellate intervention potentially futile.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must demonstrate an arguable appeal and that the appeal would be rendered nugatory if the orders sought are not granted
  • The law does not permit simultaneous pursuit of review of and appeal against the same order
  • Courts should not issue orders in vain; where a ruling on review is likely already delivered, intervention would be ineffective

Court orders

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  1. 1.The application under Rule 5(2)(b) is dismissed in its entirety
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (2)

  • Stanley Kangethe Kinyanjui -vs- Tony Ketter & 5 Others
    [2013] eKLR

    The two-limb Rule 5(2)(b) test: arguable appeal and nugatory appeal

  • Tanzania Roads Agency -vs- Kundan Singh Construction Limited & Another
    [2013] eKLR

    Courts should not issue orders in vain; avoiding legal absurdity

On appeal from
High Court of Kenya at Nairobi
HCCC No. 114 of 2019
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, premised on a filed notice of 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, "Squishy Drinks Limited v Kevian Kenya Limited", Case Analysis (2022). Civil Application 386 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/452/eng@2022-03-18

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