Anthony Kibandi Watuku v Shanghiya Enterprises Limited (t/a Anningtex Diamong)
The bottom line
#Kenya's Court of Appeal refused to reinstate temporary orders protecting a terminated supplier, confirming interim appeals can only preserve positions, not deliver final wins.
What this practically means
#Executive summary
#Key legal issues
#Scope of relief obtainable under rule 5(2)(b) of the Court of Appeal Rules
The Court cannot grant final orders such as declaration of nullity of termination, reinstatement of a contract, or compensation for accrued damages under rule 5(2)(b); the rule preserves the substratum of an appeal through temporary relief only
Rule 5(2)(b) exists to preserve the substratum of an appeal, prevent irreversible hardship or damage not compensable by damages. The applicant's orders sought final relief: nullification of contract termination, reinstatement, daily damages, and permanent injunctions. Such orders are the preserve of a trial court after a full trial, so the application was bad in law and dismissed.
Prerequisites for relief under rule 5(2)(b)
The twin prerequisites are an arguable appeal and that the appeal would be rendered nugatory absent the orders; an arguable appeal need not succeed and a single bona fide arguable point suffices
Restating settled case law, the Court held an applicant must demonstrate an arguable appeal and nugatory-ness. An arguable appeal is one raising a bona fide issue worthy of consideration, not one that must succeed; a single arguable point suffices. Nugatory-ness arises where the effect would be irreversible or damages would not reasonably compensate. The Court, however, did not reach these merits because the orders sought could not be granted at all under the rule.
Legal principles established
#- An application under rule 5(2)(b) of the Court of Appeal Rules is intended to give temporary relief only and cannot be used to obtain final orders that only a trial court can grant after trial
Court orders
#- 1.The application dated 22nd April 2024 is dismissed with costs to the respondent
- On appeal from
- High Court of Kenya
- HC Comm. Misc No. E186 of 2024
- Jurisdiction invoked
- Article 159(2)(d) of the Constitution of Kenya, 2010; sections 3 and 3A of the Appellate Jurisdiction Act; Rules 29(1)(b), (2), (3), (4) and 47 of the Court of Appeal Rules (rule 5(2)(b) relief)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anthony Kibandi Watuku v Shanghiya Enterprises Limited (t/a Anningtex Diamong)", Case Analysis (2024). Court of Appeal Application dated 22nd April 2024 (arising from High Court HC Comm. Misc No. E186 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1615/eng@2024-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.