Eric Keter & 6 others v Isaiah Kiplagat & 2 others [2004] KECA 167 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants' intended appeal is arguable
- 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
#Whether the intended appeal against the orders of Ransley, J (staying the suit, referring the dispute to arbitration and refusing injunctions) is arguable
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
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.
Whether the success of the intended appeal would be rendered nugatory if the injunction and stay sought were not granted
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
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.
Legal principles established
#- 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
#- 1.The notice of motion dated 27th September, 2004 and lodged on 28th September, 2004 is dismissed
- 2.The costs of the dismissed motion shall be in the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#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
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
Costs
The costs of the dismissed motion shall be in the intended appeal.
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.
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.
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.
The costs of the dismissed motion shall be in the intended appeal.
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.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.