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Court of AppealDismissedCivil Application E276 of 2022· [2022] KECA 1276 (KLR)

Opiyo & 123 others v Telposta Pension Scheme Registered Trustees

Court of Appeal
18 November 2022
2,104 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to stop the Telposta trustees from dealing with pension scheme houses because the former employees' appeal raised no arguable issues.

What this practically means

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Executive summary

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The applicants, 124 former employees of Telkom Kenya Limited and the Postal Corporation of Kenya and members of the Telposta Pension Scheme, sought an injunction pending appeal restraining the respondent trustees from interfering with their occupation of houses on plots subdivided from LR No 209/12554. Their claim in the Environment and Land Court, founded on an alleged legitimate expectation of first priority to purchase the houses, had been dismissed by Okong'o, J on 14 December 2021, and they lodged an appeal. The notice of motion dated 25 April 2022 was brought under Rules 42, 43 and 47 of the Court of Appeal Rules rather than Rule 5(2)(b), but the court proceeded to determine it on the merits as though the correct provision had been cited, the respondent having raised no objection. The court reiterated that the principles governing injunctions in the Court of Appeal differ totally from those in the High Court, so the Giella v Cassman Brown and Nguruman tests relied on by the respondent were irrelevant; the applicant need only show an arguable appeal, that the appeal would be rendered nugatory absent an injunction, and in certain instances public interest. Applying the Kinyanjui v Keter standard, the court doubted the legitimate expectation claim, noting the employment relationship had ended and the houses had been condemned as unfit for human habitation, and found the grounds in the memorandum of appeal not arguable. Having failed the first limb, the nugatory limb was not considered. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the appeal is arguable

Holding

The court doubted the applicants' claim to a legitimate expectation and found the grounds in the memorandum of appeal not arguable

Reasoning

The applicants' employment relationship with the respondent ended when their services were terminated during restructuring, and they insisted on remaining in houses condemned as unfit for human habitation. Applying the Kinyanjui v Keter test that an arguable appeal is one that is not frivolous and ought to be argued fully, the court held the memorandum of appeal raised no arguable issues.

p. 4
02

Whether the appeal would be rendered nugatory absent an injunction

Holding

Not considered, because the applicants failed the arguability limb

Reasoning

Both limbs of the Rule 5(2)(b) test must be demonstrated to the court's satisfaction before the discretion is exercised. Having failed on arguability, the court declined to reach the nugatory question, so no finding was made on whether eviction or transfer of the properties would render a successful appeal nugatory.

03

Whether the application, brought under Rules 42, 43 and 47 rather than Rule 5(2)(b), was properly constituted

Holding

The court proceeded to determine the application on merit as though the proper provisions had been cited, since the respondent raised no objection

Reasoning

The application was not brought under Rule 5(2)(b) as required but under irrelevant provisions. The court nonetheless determined it on its merits, discerning the purport of the application from the prayers, and noting the respondent raised no objection to the mis-citation.

p. 2

Legal principles established

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  • On an application under Rule 5(2)(b), the applicant must establish an arguable appeal and that the appeal would be rendered nugatory absent an order of injunction; both limbs must be demonstrated
  • The principles for granting an injunction in the Court of Appeal differ totally from those in the High Court and courts below; Giella v Cassman Brown and Nguruman principles are irrelevant on a Rule 5(2)(b) application
  • Where an applicant fails to satisfy the arguability limb, the nugatory limb need not be considered

Court orders

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  1. 1.The notice of motion dated April 25, 2022 is dismissed
  2. 2.Costs of the application awarded to the respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 42
  • Court of Appeal RulesRule 43
  • Court of Appeal RulesRule 47
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75

Cases cited (6)

  • Halai & Another v Thornton & Turpin [1963] Ltd
    [1990] KLR 365

    That lodging a notice of appeal within 14 days of the judgment properly seizes the Court of the application

  • Judicial Commission of Inquiry into the Goldenberg Affair & 3 Others v Kilach
    [2003] eKLR

    That one arguable issue suffices to find an appeal arguable

  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR

    Triple requirements for a temporary injunction (prima facie case, irreparable injury, balance of convenience) - held irrelevant in this Court

  • Stanley Ng'ethe Kinyanjui v Tony Keter
    [2013] eKLR

    Definition of an arguable appeal and the limits of findings on a Rule 5(2)(b) application

  • Giella v Cassman Brown
    [1973] EA 358

    High Court injunction principles - held irrelevant to a Rule 5(2)(b) application

  • Ishmael Kagunyi Thande v Housing Finance Company Limited
    Civil Application No 156 of 2006 (UR)

    Restatement of the twin principles governing Rule 5(2)(b) jurisdiction

On appeal from
Environment and Land Court at Nairobi
ELC Suit No 629 of 2016
Jurisdiction invoked
Rules 42, 43 and 47 of the Court of Appeal Rules; treated as an application under Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Opiyo & 123 others v Telposta Pension Scheme Registered Trustees", Case Analysis (2022). Civil Application E276 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1276/eng@2022-11-18

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