Opiyo & 123 others v Telposta Pension Scheme Registered Trustees
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the appeal is arguable
The court doubted the applicants' claim to a legitimate expectation and found the grounds in the memorandum of appeal not arguable
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.
Whether the appeal would be rendered nugatory absent an injunction
Not considered, because the applicants failed the arguability limb
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.
Whether the application, brought under Rules 42, 43 and 47 rather than Rule 5(2)(b), was properly constituted
The court proceeded to determine the application on merit as though the proper provisions had been cited, since the respondent raised no objection
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.
Legal principles established
#- 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
#- 1.The notice of motion dated April 25, 2022 is dismissed
- 2.Costs of the application awarded to the respondent
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- J&K Investments Limited v Gazemba Wekesa & Co Advocates (Civil Application E587 of 2023) [2024] KECA 513 (KLR)[2024] KECA 513 (KLR)26 Apr 2024
Cite this brief
#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.