R K K v M W K & 2 others [2016] KECA 635 (KLR)
The bottom line
#The Court of Appeal refused to pause orders barring a man from running two schools, because winning later would still leave everything recoverable.
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 applicant's intended appeal is arguable
- 2.Whether the appeal, if successful, would be rendered nugatory if stay of execution and the related interim orders are not granted
Key legal issues
#Whether the intended appeal is arguable under rule 5(2)(b)
The appeal is arguable, as the memorandum of appeal raises questions whether the learned Judge applied the correct principles and took into account relevant considerations
The memorandum of appeal disclosed issues for determination, including whether the High Court judge applied the correct principles and considered relevant matters. The court applies the settled rule that a solitary arguable point suffices, without delving into the merits so as not to prejudice the appeal. Arguability was therefore met, but this alone does not entitle the applicant to stay.
Whether the appeal would be rendered nugatory if stay is not granted
It would not: staying the order restraining transfer of the vehicles would defeat the substratum of the pending suit, and the schools and business would remain available if the applicant succeeds
Staying the restraining order would hand the applicant a carte blanche over the disputed vehicles and defeat the substratum of the High Court suit. If the applicant succeeds, the vehicles remain inhibited by court order and the business remains available; no mismanagement of the schools was alleged, and any party may apply if impropriety in management is ascertained during the appeal.
Whether mandatory injunctive relief can be granted under rule 5(2)(b)
Prayers (f) and (g) sought mandatory injunctions, which the rule does not provide for; this contention was raised by the 1st respondent and not adjudicated as a holding
The 1st respondent's counsel argued that prayers directing the doing of things amount to mandatory injunctions for which rule 5(2)(b) makes no provision. The court did not expressly rule on this as a separate holding, but declined the application in its entirety, with the orders sought effectively unavailable under the rule.
Legal principles established
#- An applicant under rule 5(2)(b) must first satisfy the court that the appeal is arguable, and secondly that if the order sought is not granted the appeal, if successful, would be rendered nugatory
- A single arguable point suffices to satisfy the arguability threshold
- In assessing arguability the court will not delve into the merits of the appeal; an arguable appeal is not necessarily one that must succeed
- Rule 5(2)(b) discretionary relief balances the successful litigant's fruits of judgment against the aggrieved litigant's right of appeal
Court orders
#- 1.Application dated 19th March 2015 dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya, Nairobi
- H.C.C.C. No. 122 of 2013
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the High Court orders restraining the applicant from entering or interfering with the running of the two schools and their assets
Although the appeal is arguable, its success would not be rendered nugatory because the vehicles remain inhibited by court order and the business remains available to the parties
Order directing school customers to pay fees into the previous joint-signatory school account or, in the alternative, appointment of a manager
Prayers (f) and (g) seek a mandatory injunction which is not grantable under rule 5(2)(b) of the Court of Appeal Rules
Order that the respondents pay the applicant his salary of Ksh.300,000 per term with effect from 2nd term 2015
It sought a mandatory injunction, which cannot be granted under rule 5(2)(b)
Costs
Application dismissed with costs 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.
In the result, although the appeal is arguable, it will not, if successful, be rendered nugatory if stay is not granted as prayed.
Accordingly, we decline to allow the application which we hereby dismiss with costs to the respondents.
It is now settled that an applicant need not demonstrate a litany of arguable points. It is sufficient even if there be a solitary arguable point.
We are satisfied that on the peculiar facts of this case, the interest of justice will be better served by maintaining the orders appealed from, pending the determination of the appeal which will not be rendered nugatory if stay is not granted.
Issues in the judgment
#Internal contradiction on the date of the High Court ruling: the header says the order was delivered on 22nd September 2014, but the body refers to a ruling dated 22nd September 2015
Reference to 'the 3rd and 4th respondents' although the cause lists only three respondents (1st, 2nd and 3rd)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "R K K v M W K & 2 others [2016] KECA 635 (KLR)", Case Analysis (2016). Civil Application No. NAI 364 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/635/eng@2016-04-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.