Giant Holdings Limited v Kenya Airports Authority [2010] KECA 370 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a dismissed injunction application leaves nothing to stay, and courts won't revive terminated contracts or punish alleged contempt futily.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is anything capable of being stayed arising from the superior court's dismissal of the interlocutory injunction application
- 2.Whether an injunction pending appeal should issue restraining KAA from granting an advertising concession to any other party
- 3.Whether the application for injunction has been overtaken by events
- 4.Whether leave should be granted to apply for an order of committal for contempt against three officers of the respondent for breach of the interim injunction
Key legal issues
#Whether an order of stay of execution is available following dismissal of an interlocutory injunction application
Stay is misconceived because the superior court granted no positive relief; stay does not lie over a bare dismissal, and costs were not specifically addressed in the notice of appeal
The court applied the principle that what may be stayed is a positive order of the court. The superior court only dismissed GHL's application with costs; it imposed no obligation on KAA and directed no party to do or abstain from anything. Following Western College of Arts & Applied Sciences v Oranga, the applicant also failed to specifically seek stay regarding costs. There was therefore nothing capable of being stayed.
Whether an injunction pending appeal should issue restraining the grant of an advertising concession to third parties
No injunction could issue: the contract was terminated in accordance with the notice of termination when the interlocutory application was dismissed, the subject matter was overtaken by events, and the ten-year agreement had expired by effluxion of time
The court reasoned that upon dismissal of the interlocutory injunction application the contract stood terminated per the termination notice, leaving KAA free to contract with others. KAA had already entered agreements with Media Initiative East Limited and Ogilvy East Africa Limited, so what GHL sought to restrain had already happened. The underlying ten-year agreement had also expired by effluxion of time, leaving no contractual rights capable of protection by injunction.
Whether leave to commence contempt proceedings for breach of the consent interim injunction should be granted
Leave refused: the contested issue of whether the Media and Ogilvy contracts could be extended concerns parties not before the court, and the futility of further litigation and doubts about GHL's locus standi weighed against allowing the application
The consent injunction exempted the existing Media and Ogilvy contracts, and whether those contracts contained a built-in holding-over clause permitting extension was a contentious matter involving contractual rights of non-parties. The court held it would be wrong to adjudicate those rights in proceedings to which the companies were strangers, that further litigation would be futile given the termination and expiry of the main contract, and that GHL's locus standi to prosecute the intended committal application was doubtful.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the court that the appeal is arguable and that, unless the order sought is granted, the appeal would be rendered nugatory
- Stay of execution lies only in respect of positive relief or orders requiring a party to do or refrain from doing something; a dismissal of an application for interlocutory injunction leaves nothing to stay
- A contract terminated in accordance with a notice of termination, absent a court declaration to the contrary, remains terminated, and an injunction cannot be used to revive a contractual relationship that no longer exists
- A court should not scrutinise or determine the contractual rights of parties who are not before it in proceedings to which they are strangers
Court orders
#- 1.Dismissal of the first application (Civil Application No. Nai. 193 of 2005) for stay of execution and injunction pending appeal
- 2.Dismissal of the second application (Civil Application No. Nai. 139 of 2007) for leave to apply for an order of committal for contempt
- 3.Costs of both applications to the respondent
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.C. No. 694 of 2003
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
- Consolidated with
- Civil Application No. Nai. 139 of 2007 (UR. 90/2007)
Relief refused
#Stay of execution of the superior court's orders
The superior court merely dismissed GHL's application for interlocutory injunction and granted no positive relief; no order capable of being stayed exists
Injunction restraining KAA from granting an advertising concession to any other party
The contract was terminated upon dismissal of the interlocutory application and by effluxion of time; the application was overtaken by events and there are no contractual rights left to protect
Leave to apply for an order of committal for contempt against three KAA officers
The dispute over extension of the Media and Ogilvy contracts involves rights of parties not before the court, the underlying ten-year contract has ended, and GHL's locus standi to prosecute the application is doubtful
Costs
Both applications 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.
For the foregoing reasons we dismiss both the first application for stay and injunction and the second application for leave to apply for order of committal for contempt with costs to the respondent.
an applicant is required to satisfy the court that the intended appeal or appeal is arguable and that unless the order sought is granted the appeal if ultimately successful would be rendered nugatory
Thus an order of injunction to restrain KAA from granting an advertising concession to any other party would not only have no foundation but also it would have the effect of reviving a contractual relationship which does not now exist.
it would be wrong if the Court were to determine the contractual rights of parties who are not before the Court and when there is no dispute between the parties to the contract.
The result is that GHL has no contractual rights which can be protected by an order for injunction pending appeal.
Issues in the judgment
#The heading describes Giant Holdings as 'APPLICANT' rather than appellant, and the ruling addresses interlocutory applications rather than the main appeal; the classification 'dismissed' refers to the two applications, not the substantive appeal (Civil Appeal No. 130 of 2005), whose fate is not stated
Inconsistent date rendering: the consent injunction date appears as '2nd August, 2005' in one passage and '2nd august, 2005' in another
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Simba Corporation Limited v Caetano Formula East Africa, SA [2019] KECA 104 (KLR)[2019] KECA 104 (KLR)6 Dec 2019
- CMC Holdings Limited & CMC Motors Group Limited v Jaguar Land Rover Exports Limited [2013] KECA 10 (KLR)[2013] KECA 10 (KLR)7 Jun 2013applied
Cite this brief
#Cite this brief
Caselaw, "Giant Holdings Limited v Kenya Airports Authority [2010] KECA 370 (KLR)", Case Analysis (2010). Civil Application No. 193 of 2005 (consolidated with Civil Application No. Nai. 139 of 2007 (UR. 90/2007)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/370/eng@2010-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.