Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application E080 of 2021· [2022] KECA 455 (KLR)

Mwangi v Nyali Golf & Country Club

Court of Appeal
18 March 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
1,981 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to suspend a golfer's club suspension because he failed to show his appeal had any real chance of success.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Mombasa (Kairu, Nyamweya and Lesiit JJ.A) on a Notice of Motion dated 1st November 2021 in which Simon Maina Mwangi sought a temporary injunction under Rule 5(2)(b) of the Court of Appeal Rules restraining Nyali Golf & Country Club from implementing its decision of 13th July 2020 suspending his membership for two years, pending an intended appeal against the High Court's dismissal of his judicial review application seeking certiorari. The Respondent objected that the judicial review application sought no prohibition or injunction, that no positive order existed to be stayed, and that no draft memorandum of appeal was annexed. The Court first held, adopting Clerk, Nairobi County Assembly v Speaker, that a dismissal is not a negative order incapable of being stayed and that injunctive orders may be granted even where the judgment below simply dismissed the claim. It further held, following Somak Travels and Abercombie & Kent, that failure to annex a draft memorandum is curable where grievances appear on the face of the application. On the merits, however, the Applicant failed to identify the errors of the High Court and thus demonstrated no arguable ground. Although the Court considered the nugatory limb for the record, it found the claim speculative and held damages would be an adequate remedy. The application was dismissed with costs to the Respondent.

Key legal issues

#
01

Jurisdiction to grant Rule 5(2)(b) relief where no positive order was made below

Holding

The Court exercises discretion as a court of first instance and may grant injunctive orders even where the judgment below simply dismissed the claim.

Reasoning

Relying on Clerk, Nairobi County Assembly v Speaker, the Court held that a dismissal is not a negative order incapable of being stayed. The discretion must consider the import of the decision of the superior court, the nature of the orders sought in the intended appeal and preservation of the subject matter to ensure just and effective determination of the appeal.

p. 3
02

Failure to annex a draft memorandum of appeal

Holding

The omission is not fatal and is curable where grievances are sufficiently set out on the face of the application.

Reasoning

Following Somak Travels and Abercombie & Kent, the Court held that while annexing a draft memorandum is desirable, its absence is curable where the applicant has sufficiently set out grievances on the face of the application, in the interests of substantive justice. The application was therefore properly before the Court.

p. 3
03

Arguability of the intended appeal

Holding

The Applicant failed the first limb because he did not aver to the errors made by the High Court in its findings.

Reasoning

Although the Applicant pleaded breach of fair hearing and fair administrative action, he did not identify the errors made by the High Court in its findings, and only pleaded that the appeal would be rendered nugatory. Without discernible grounds of appeal, no arguable ground was demonstrated.

p. 3
04

Nugatory aspect

Holding

The appeal would not be rendered nugatory; damages would be an adequate remedy and the two-year suspension claim was speculative.

Reasoning

The Court applied Reliance Bank v Norlake and Kinyanjui v Ketter, holding that 'nugatory' includes trifling. It was speculative that the appeal would not be heard within two years, and if the appeal succeeded the Applicant could be adequately compensated in damages.

p. 4

Legal principles established

#
  • A dismissal of a claim is not a negative order incapable of being stayed; the Court may grant injunctive orders even where the judgment appealed against simply dismissed the claim.
  • Omission to annex a draft memorandum of appeal to a Rule 5(2)(b) application is not fatal where grievances are sufficiently set out on the face of the application.
  • An applicant under Rule 5(2)(b) must satisfy both the arguability and nugatory limbs.

Court orders

#
  1. 1.The Notice of Motion dated 1st November 2021 is dismissed with costs to the Respondent

Authorities

#

Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75

Cases cited (13)

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

    Restatement of Rule 5(2)(b) principles: arguable appeal and nugatory appeal

  • Halai & Another vs Thornton & Turpin (1963) Ltd.
    (1990) KLR 365

    Court properly seized where Notice of Appeal lodged within 14 days

  • Trust Bank Limited and Another vs Investech Bank Limited and 3 others
    [2000] eKLR

    Discretion in granting injunction under Rule 5(2)(b)

  • NIC Bank Limited & 2 others vs Mombasa Water Products limited
    [2021] eKLR

    Discretion in granting injunction under Rule 5(2)(b)

  • Meso Multipurpose Society Limited vs Luore Nyoiro Company limited and 2 others
    [2020] eKLR

    Arguable appeal need not necessarily succeed

  • Equity Bank Limited vs West link Mbo Limited
    [2013] eKLR

    Arguable appeal need not necessarily succeed

  • Board Trustees of NSSF vs Caroline Wanjiru Karori
    [2020] eKLR

    Arguable appeal need not necessarily succeed

  • Cortec Mining Kenya Limited vs Cabinet Secretary, Attorney General & 8 others
    [2015] eKLR

    Respondent's submission that no prohibition or injunction was sought at trial

  • Clerk, Nairobi County Assembly vs Speaker, Nairobi City County Assembly & another
    [2021] eKLR

    Dismissal is not a negative order incapable of being stayed; injunctive orders may issue

  • Daniel Lomagul Kandei & 2 Others vs. Kamanga Holdings Limited & 40 Others
    (2017) eKLR

    Court exercises discretion as court of first instance under Rule 5(2)(b)

  • Somak Travels Ltd vs Gladys Aganyo
    [2016] eKLR

    Omission of draft memorandum of appeal is not fatal

  • Abercombie & Kent Limited vs John Wanjau Maina
    [2020] eKLR

    Omission of draft memorandum of appeal is curable

  • Reliance Bank Limited vs Norlake Investments Ltd
    [2002] 1 E.A. 227

    Meaning of 'nugatory': worthless, futile, invalid or trifling

On appeal from
High Court of Kenya at Mombasa
Judicial Review Application No E008 of 2020
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (6)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Mwangi v Nyali Golf & Country Club", Case Analysis (2022). Civil Application E080 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/455/eng@2022-03-18

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