Automated Summary
Key Facts
The Court of Appeal in Kenya dismissed a civil application by Adan Osman Godana (t/a Eldoret Standard Butchery) seeking a stay of execution of a High Court judgment dated 6th June 2017. The application aimed to prevent the Ministry of Defence from entering a contract with Avenue Butchery for the supply of fresh meat to Eldoret-based units under Tender No. MOD/423 (01103) 2016/2017. The court ruled that the application was overtaken by events, as the Ministry had already signed a supplementary contract with Avenue Butchery on 12th June 2017, rendering the applicant's intended appeal nugatory. The applicant's arguments about an arguable appeal and balance of convenience were deemed invalid due to the contract's execution.
Transaction Type
Supply Agreement for fresh meat to Eldoret-based military units
Issues
- The applicant contended that the Public Procurement Administrative Review Board's decision (Review Application No. 98 of 2016) regarding Tender No. MOD/423 (01103) 2016/2017 would be given effect if a stay was not granted, potentially rendering the appeal superfluous and causing prejudice.
- The court considered whether the applicant's intended appeal against the High Court judgment would be rendered nugatory without a stay of execution, as the applicant argued that the Ministry of Defence might already have executed the contract with the 4th respondent, making the appeal ineffective.
- The Hon. Attorney General's replying affidavit confirmed that the Ministry of Defence had signed a supplementary contract with Avenue Butchery (4th respondent) on 12th June 2017, rendering the application for a stay moot as the event sought to be injuncted had already occurred.
- The applicant asserted that the balance of convenience clearly weighed in their favor, as they were still supplying fresh meat to Eldoret-based units under the tender in question, and no prejudice would result from allowing continued supply pending the appeal.
Holdings
The court dismissed the application for a stay of execution pending appeal, finding that the contract sought to be restrained had already been entered into and was being executed by the fourth respondent. The application was deemed to have been overtaken by events, with no remaining substratum to justify the interim relief. The court further noted the applicant's failure to provide a counter-affidavit to dispute the replying affidavit, leaving the application 'fatally deflated' and lacking in substance.
Remedies
The application for stay of execution is dismissed with costs by the Court of Appeal on 15th December 2017.
Legal Principles
The court applied the principle that an interim injunction requires the applicant to demonstrate both an arguable appeal and that the appeal would be rendered nugatory unless interim relief is granted. The application was dismissed because the contract had already been executed, making the injunction ineffective as it could not be retrospective.
Precedent Name
- GITHUNGURI vs. JIMBA CREDIT CORPORATION LTD (NO. 2)
- DANIEL LOMAGUL KANDIE & 2 OTHERS vs. KAMANGIA HOLDINGS LTD & 4 OTHERS
Judge Name
- K. M'INOTI
- P.O. KIAGE
- P. N. WAKI
Passage Text
- For the reasons we have adumbrated, this application is bereft of meat and substance, and fails. It is accordingly dismissed with costs.
- Indeed, having seen the said contract as exhibited, and in the absence of an answering affidavit by the applicant, to controvert it, the application is left fatally deflated and has no legs to stand on.
- Avenue Butchery has been supplying beef on bone to the Unites since 12th June 2017.
Damages / Relief Type
Injunction denied; application dismissed with costs.