Adan Osman Godana t/a Eldoret Standard Butchery v Public Procurment Administrative Review Board & 3 others [2017] KECA 84 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a butchery's attempt to block a defence supply contract because the contract had already been signed and being performed.
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 had demonstrated an arguable appeal and that the appeal would be rendered nugatory absent interim relief under Rule 5(2)(b)
- 2.Whether the application had been overtaken by events because the contract sought to be injuncted had already been signed and was being executed
Key legal issues
#Whether the stay/injunction application was overtaken by events
The application failed because the contract it sought to injunct had already been signed and was being executed by the fourth respondent, uncontroverted by the applicant.
The Attorney General's replying affidavit, sworn by Major Vitalis Lumbasi Muke, deposed that following the High Court's ruling the Ministry signed a supplementary contract with Avenue Butchery, which had been supplying beef since 12th June 2017. The applicant filed no answering affidavit to controvert this. Counsel for the applicant had conceded that if the contract had been executed, the nugatory aspect and the entire application would fail. There was nothing left to preserve.
Whether persisting with the application despite the contract's execution was an abuse of process
Yes - the court found that persisting with the application while aware the contract had been signed was mischievous and an abuse of the process of the Court.
The court reasoned that the applicant knew the contract had been signed and was being executed, yet continued to argue the motion. Nothing remained to preserve and the substratum of the application had disappeared. It relied on Daniel Lomagul Kandie & 2 Others v Kamangia Holdings Ltd & 4 Others in support of that conclusion.
Legal principles established
#- An applicant for stay or injunction pending appeal under Rule 5(2)(b) must demonstrate both an arguable appeal and that the appeal would be rendered nugatory without interim relief.
- Injunctions are prospective only; a court cannot injunct an event that has already occurred, and where the substratum of an application has disappeared it fails.
Court orders
#- 1.The application dated 12th June 2017 seeking stay of execution pending the intended appeal is dismissed
- 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
- JR. Misc. Civil Appln. No. 622 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution or injunction pending appeal)
Relief refused
#Stay of execution and/or restraint restraining the Ministry of Defence from entering into a contract with the fourth respondent pending the intended appeal
The contract had already been signed and executed by the parties excluding the applicant, so the nugatory aspect failed and the application was overtaken by events
Costs
The application is 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.
an applicant who seeks this Court's intervention by way of injunction or stay pending appeal under Rule 5 (2)(b) must, on the authority and settled principles, demonstrate both that he has an arguable appeal and that the appeal would be rendered nugatory unless interim relief is granted
The court cannot injunct an event that has already occurred as injunctions are by definition prospective, and never retrospective.
For the reasons we have adumbrated, this application is bereft of meat and substance, and fails. It is accordingly dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adan Osman Godana t/a Eldoret Standard Butchery v Public Procurment Administrative Review Board & 3 others [2017] KECA 84 (KLR)", Case Analysis (2017). Civil Application No. 130 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/84/eng@2017-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.