Peter Kiguta Mwaura & 4 others v Registrar of Societies & 3 others [2010] KECA 330 (KLR)
The bottom line
#Kenya's Court of Appeal refused to protect club officials fighting their removal because their appeal had no realistic chance of success.
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 had an arguable intended appeal to warrant an injunction pending appeal.
- 2.Whether a stay of execution of the costs awarded by the High Court should be granted.
- 3.Whether the injunctions sought against the 2nd to 4th respondents were connected to the judicial review orders sought in the underlying motion.
Key legal issues
#Applicability of the Civil Procedure Rules to judicial review applications
Judicial review is a special jurisdiction to which the Civil Procedure Code and Rules do not apply; section 8(1) of the Law Reform Act is the substantive law on judicial review and itself provides the High Court may not issue prerogative writs.
The court noted that the application before the superior court was brought under Order 53 Rule 1 of the Civil Procedure Rules, yet section 8(1) of the Law Reform Act, the substantive law on judicial review, states the High Court shall not issue the prerogative writs. Prior decisions of the Court of Appeal (Hotel Kunste; R v Communication Commission of Kenya) confirm that judicial review is a special jurisdiction outside the Civil Procedure Code and Rules. On this footing the court found the appeal not arguable.
Test for injunction and stay pending intended appeal
An applicant must demonstrate an arguable appeal; where none is shown, the court need not consider the nugatory aspect.
The court applied the established two-limb test for interim relief pending appeal: arguability of the appeal and, if arguable, whether it would be rendered nugatory. Because the court was not satisfied the intended appeal was arguable—given the defect in invoking Civil Procedure Rules in a judicial review matter and the disconnection between the prayers sought—it declined to consider whether the appeal would be rendered nugatory.
Connection between relief sought pending appeal and relief in the substantive motion
Interim relief must bear a connection to the orders sought in the substantive application; here the injunctions sought had no connection to the certiorari, prohibition and mandamus orders.
The court compared the orders sought in the underlying judicial review motion (quashing the Registrar's decision, prohibiting the Registrar and the applicants) with the injunctions sought in the application before it (restraining the 2nd to 4th respondents from masquerading as members or officers of the club). Finding no connection whatsoever, the court concluded the application could not stand and that no basis existed for staying the awarded costs.
Legal principles established
#- The judicial review process is a special kind of jurisdiction over which the Civil Procedure Code and Rules do not apply.
Court orders
#- 1.Dismissal of the applicants' application dated 16th October, 2009
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C. Appl. No. 97 of 2009
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over an intended appeal from the High Court; the application sought stay and injunction pending appeal (no specific constitutional provision cited).
Relief refused
#Injunction restraining the 2nd to 4th respondents from masquerading as members/officers of Githunguri Social Club and from interfering with the club
No connection between the orders sought on the application and the orders sought in the underlying judicial review notice of motion; no arguable appeal shown
Stay of execution of costs awarded to the respondents by the superior court
No basis laid; the respondents had not set in motion any process to recover the costs
Costs
The application was dismissed with costs; the costs of the application were awarded to the respondents.
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.
Various decisions of this Court have confirmed that the judicial Review Process is of a special kind of jurisdiction over which the Civil Procedure Code and Rules do not apply
we are not satisfied that the applicants have an arguable appeal to warrant the grant of the orders being sought in this application, and in view of this finding it is not necessary for us to go into the nugatory aspect of the intended appeal.
As can clearly be seen, there is no connection whatsoever between the orders sought in the Notice of Motion and those being sought in this application.
Consequently we dismiss this application with costs.
Issues in the judgment
#The judgment gives inconsistent dates for the meeting at which the respondents were elected - earlier narration says the annual general meeting was held on 5th October, 2008, while the Registrar's affidavit refers to election at a Special General Meeting on 2nd November, 2009 and the 2nd respondent refers to an AGM on 5th October, 2008
The affidavit of the 2nd respondent refers to a notice of motion dated 21st October, 2009 whereas the application before the Court is dated 16th October, 2009
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Kiguta Mwaura & 4 others v Registrar of Societies & 3 others [2010] KECA 330 (KLR)", Case Analysis (2010). Civil Application No. 310 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/330/eng@2010-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.