Tanui & 4 others v Birech & 11 others [1991] KECA 6 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop the Eldoret Diocese bishop election, ruling that losing applicants must prove real, irreparable harm, not just a valid argument.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is frivolous or arguable
- 2.Whether the appeal, if successful, would be rendered nugatory if the interim injunction were denied
Key legal issues
#Whether the applicants had an arguable appeal
The appeal was arguable and not frivolous, since the Church itself had acknowledged and nullified the first election for constitutional irregularities, and the judge's reliance on the general non-interference principle was arguably a misdirection
Dr Khaminwa argued that the same constitutional breaches that nullified the first election would recur in the repeat elections. The Court accepted that although it does not involve itself in the day-to-day running of churches, colleges and clubs, it is duty-bound to compel such bodies to obey their own constitutions where their conduct breaches them to members' detriment. The Church's own nullification of the prior election and the alleged misdirection by the learned judge raised substantial points of law.
Whether the appeal would be rendered nugatory if the injunction were denied
The appeal would not be nugatory; the alleged injury of disunity was speculative and not personal or irreparable, and the applicants retained a remedy to challenge the validity of any elections held
The only injury pleaded was disunity in the Church, unsupported by evidence of the size or identity of the group on whose behalf the matter was brought, and contradicted by documents from various parishes. Even if fresh elections proceeded, the applicants could still challenge their validity in the High Court for breach of the Church constitution, as they had successfully done with the first election. The Court also agreed that granting the injunction would paralyse the operations of the Church, which it ought not to do.
Legal principles established
#- On an application under rule 5(2)(b), the applicant must show an arguable appeal and that the appeal, if successful, would not be rendered nugatory
- Courts are entitled, and under a duty, to compel voluntary associations to obey their own constitutions where their affairs are conducted in breach of them and to the detriment of members
- Courts should not grant interim orders that would paralyse the operations of an organization, as such orders would be out of proportion to the alleged wrongs
Court orders
#- 1.The application for an injunction pending appeal is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Suit filed 15 March 1991 (chamber summons under Order 39 rules 2 and 9)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules - application for injunction pending appeal
Relief refused
#Injunction restraining the respondents from proceeding with the election of the Diocesan Bishop of Eldoret pending the hearing and determination of the appeal
The appeal was arguable but the applicants failed to show the appeal would be rendered nugatory; the alleged injury (disunity of the Church) was speculative, and the applicants would retain a remedy by challenging the validity of the elections in court
Costs
Application dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
first, the appeal should not be frivolous or as it is otherwise put, the applicant must show that he has an arguable appeal and second, this Court should ensure that the appeal, if successful, should not be nugatory.
yet where it is shown that such an organization is conducting its affairs in a manner contrary to its constitution and to the detriment of its members, then the High Court and this Court would not only be entitled to but under a duty to compel it, either, by injunction or otherwise, to obey its constitution.
We agree with the learned judge that to grant the applicants the injunction they seek would be to paralyse the operations of the Church and this, the Court ought not to do.
This application fails and we order it dismissed with cost to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tanui & 4 others v Birech & 11 others [1991] KECA 6 (KLR)", Case Analysis (1991). Civil Application (injunction pending appeal) arising from High Court suit filed 15 March 1991. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1991/6/eng@1991-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.