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Court of AppealAllowedCivil Application No. 223 of 2017 (UR 172/2017)

Nick Mwendwa & another v Sam Nyamweya [2017] KECA 201 (KLR)

Court of Appeal
10 November 2017
3,122 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal allowed Kenya's football league expansion to continue while it decides an appeal over the High Court's 16-team ruling.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Nairobi (Waki, Ouko and M'inoti, JJ.A.) on an application under rule 5(2)(b) for stay of execution of the High Court judgment of Mativo J dated 21 September 2017. The underlying dispute concerned the expansion of the Kenya premier league from 16 to 18 teams. The Sports Disputes Tribunal had declined to restrain the expansion, but the High Court, in a petition by former FKF president Sam Nyamweya, declared that the league shall have a maximum of 16 teams for the 2017/2018 season and nullified the FKF club licensing regulations, finding an absence of public participation. The applicants, FKF's president and secretary general, sought stay pending an intended appeal. Applying the settled dual test, the Court found the draft memorandum raised bona fide arguable issues, including public participation, the respondent's standing as a non-party to the FKF-KPL agreement, and whether the dispute had already been determined by the Tribunal. On the nugatory limb, the Court reasoned that if the appeal succeeded after the season concluded, the damage - loss of sponsorship, players' livelihoods, disruption of lower leagues and national team opportunities - would be irreversible, and weighed this against the lesser evil of the two teams playing the remaining matches if the appeal failed. The Court granted a stay of execution of the High Court judgment until the hearing and determination of the intended appeal, with costs of the application to abide the appeal's outcome. The High Court judgment itself was neither affirmed nor reversed at this stage; only its execution was stayed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, unless stay of execution is granted, the intended appeal will be rendered nugatory if it succeeds

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The draft memorandum of appeal raised bona fide issues, including public participation, the respondent's standing as a non-party to the agreement, and res judicata vis-à-vis the Tribunal's decision; the appeal was therefore arguable.

Reasoning

The Court identified issues such as whether the judge erred on public participation, whether he should have entertained a petition by a non-party to the agreement, and whether the dispute had already been determined by the Sports Disputes Tribunal. It held these were not idle or frivolous but ex facie bona fide, while declining to determine their merits at that stage.

p. 4
02

Whether the appeal would be rendered nugatory absent stay

Holding

If the appeal succeeded after the season concluded with the two teams having played, the damage could not be reversed; the balance of hardship favoured staying the judgment.

Reasoning

The Court weighed the prejudice to each side: the two teams had already played the bulk of the matches, expended substantial sums, faced loss of sponsorship, destitution of players and staff, disruption of lower leagues, and loss of national team opportunities. If the appeal failed, the lesser evil was that the teams played the few remaining games. Uncontroverted evidence that FIFA blessed the expansion also weighed in favour of stay.

p. 4

Legal principles established

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  • To obtain stay of execution pending appeal under rule 5(2)(b), an applicant must demonstrate both that the intended appeal is arguable and that it will be rendered nugatory if stay is not granted; satisfying only one limb is insufficient.
  • An arguable appeal is not one that must necessarily succeed; it is one that raises even one bona fide issue deserving the consideration of the Court.
  • The jurisdiction of the Court under rule 5(2)(b) is original and unfettered and is invoked by the filing of a notice of appeal.
  • The rationale of the nugatory-consideration is to prevent a meritorious appeal from being rendered academic by harm occurring in the intervening period.

Court orders

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  1. 1.Stay of execution of the judgment and decree of the High Court dated 21st September 2017 until the hearing and determination of the intended appeal
  2. 2.Costs of the application to abide the outcome of the intended appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
William Ouko
W. OukoJA
Currently serving
majority
majority
On appeal from
High Court of Kenya at Nairobi
HCCP No. 59 of 2007
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (jurisdiction to order stay of execution pending appeal)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We accordingly direct that there shall be a stay of execution of the judgment and decree of the High Court dated 21st September 2017 until the hearing and determination of the intended appeal.
p. 5Final orders - stay of execution granted
to entitle an applicant to an order of stay of execution pending the hearing and determination of an intended appeal, he or she must demonstrate first that the intended appeal is arguable and that unless an order of stay of execution is granted, the appeal will be rendered nugatory if it succeeds.
p. 4Rule 5(2)(b) - dual test for stay
Such a patriotic and sentimental opportunity may not be easily quantified in monetary terms.
p. 5Non-monetary prejudice - national team opportunity

Issues in the judgment

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minor

The petition is described as filed in 2017 but the appeal from the High Court is stated as HCCP NO. 59 OF 2007, an apparently inconsistent case year on the face of the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nick Mwendwa & another v Sam Nyamweya [2017] KECA 201 (KLR)", Case Analysis (2017). Civil Application No. 223 of 2017 (UR 172/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/201/eng@2017-11-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.