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Court of AppealDismissedCivil Application (as stated in the ruling, being a motion dated 27th September, 2004 lodged 28th September, 2004)

Eric Keter & 6 others v Isaiah Kiplagat & 2 others [2004] KECA 167 (KLR)

Court of Appeal of Kenya
8 October 2004
1,364 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed Athletics Kenya officials' bid to stop elections, holding that winning an argument is not enough — you must show real, irreversible harm.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi on a motion under rule 5(2)(b) of the Court's Rules, brought by seven applicants led by Eric Keter and Lukas Sang, members of Athletics Kenya (or the Kenya Amateur Athletics Association), against Isaiah Kiplagat, David Okeyo and Joseph Kinyua, the officials of the body. Ransley, J had on 23rd September 2004 stayed the applicants' suit, referred the dispute to arbitration under the body's Constitution and refused injunctions restraining the Annual General Meeting and elections scheduled for 12th October 2004. The applicants sought a temporary injunction and a stay of execution pending an intended appeal. The Court, comprising Omolo, Onyango-Otieno and Deverell (Ag) JJA in a single unanimous judgment, applied the well-known twin principles: the applicants showed an arguable appeal, given the unresolved dispute over whether the 1953 or 1994 Constitution governs the body and the contention that the respondents' sole power to appoint the arbitrator offends natural justice. However, the applicants failed to establish that the appeal's success would be rendered nugatory: elections held could be nullified and fresh ones held, and any arbitration award made could be set aside, with costs addressing any waste. The Court also noted that locking the applicants out of the AGM, if proved, would itself ground nullification. The motion was dismissed with costs in the intended appeal. The decision below was not before the Court for determination and was not disturbed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants' intended appeal is arguable
  2. 2.Whether the success of the intended appeal would be rendered nugatory if the injunctive and stay relief sought were not granted

Key legal issues

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01

Whether the intended appeal against the orders of Ransley, J (staying the suit, referring the dispute to arbitration and refusing injunctions) is arguable

Holding

The intended appeal is arguable and not frivolous, particularly given the unresolved dispute over which Constitution governs Athletics Kenya and the contention that the respondents' sole power to appoint the arbitrator offends natural justice

Reasoning

The parties disputed whether the 1953 or 1994 Constitution governs the body, an issue Ransley J did not determine and which must be resolved at trial or by the arbitrator. The applicants also argued the 1994 Constitution's conferral of sole power to appoint the arbitrator on the respondents contravenes natural justice, supported by prior decisions with which Ransley J differed. On those arguments the Court could not hold the appeal frivolous.

p. 2
02

Whether the success of the intended appeal would be rendered nugatory if the injunction and stay sought were not granted

Holding

No nugatory effect was shown: elections held on 12th October 2004 could be nullified and fresh ones held on success of the appeal, and any arbitration award made could be set aside, with costs available to address waste

Reasoning

The Court held the applicants failed to demonstrate how success of the appeal would be rendered useless. Nullifying elections and holding fresh ones, and setting aside premature arbitration proceedings, were regarded as inevitable consequences in such situations, adequately dealt with by appropriate orders for costs. Locking the applicants out of the AGM, if proved, would itself ground nullification of the proceedings.

p. 2

Legal principles established

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  • An arguable appeal is not one that must succeed; an applicant need only show the appeal is not frivolous.
  • Under rule 5(2)(b), an applicant must satisfy the Court on both the arguability of the appeal and that its success would be rendered nugatory; satisfying only one limb is insufficient.

Court orders

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  1. 1.The notice of motion dated 27th September, 2004 and lodged on 28th September, 2004 is dismissed
  2. 2.The costs of the dismissed motion shall be in the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
On appeal from
High Court of Kenya
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Temporary injunction restraining the respondents from convening and conducting the Annual General Meeting and national elections of Athletics Kenya on 12th October, 2004 pending the intended appeal

The applicants satisfied the arguability limb but failed to demonstrate that the appeal's success would be rendered nugatory without the injunction; elections held could be nullified on success of the appeal

p. 2

Stay of execution of the ruling and orders of Ransley, J given on 23rd September, 2004

The nugatory-ness test was not satisfied; any arbitration award made before determination could be set aside if the appeal succeeded

p. 2

Costs

The costs of the dismissed motion shall be in the intended appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

An arguable appeal does not mean an appeal which must succeed. All that an applicant has to show the Court is that his appeal or intended appeal is not frivolous.
p. 2Meaning of arguable appeal under rule 5(2)(b)
While the applicants have satisfied us that they have an arguable appeal, they have failed to satisfy us that their intended appeal’s success will be rendered nugatory. The applicants were bound to satisfy us on both aspects of the matter. Accordingly, the notice of motion dated 27 th September, 2004 and lodged in this Court on 28th September, 2004 fails and we order that it be and is hereby dismissed.
p. 3Final orders - both limbs of rule 5(2)(b) must be satisfied; motion dismissed
The costs of the dismissed motion shall be in the intended appeal.
p. 3Costs of the motion
if the applicants are members of Athletics Kenya and the respondents were to lock them out of the proceedings of the annual general meeting, that, in itself, if proved, would be a ground for nullifying those proceedings.
p. 3Exclusion of members from AGM as ground for nullification

Issues in the judgment

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minor

The judgment does not state the High Court case number of the decision of Ransley, J, nor the application number in the Court of Appeal; the applicants also rely on 'certain previous decisions' of the High Court and this Court which are not named.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Eric Keter & 6 others v Isaiah Kiplagat & 2 others [2004] KECA 167 (KLR)", Case Analysis (2004). Civil Application (as stated in the ruling, being a motion dated 27th September, 2004 lodged 28th September, 2004). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/167/eng@2004-10-08

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