Governors Balloon Safaris Limited v Skyship Company Limited & another [2008] KECA 41 (KLR)

Facts

Governors Balloon Safaris Limited applied for an injunction pending the hearing and determination of an intended appeal against the order of the High Court of Kenya at Milimani Commercial Courts, Nairobi, made on 24th October, 2008 in the High Court Civil Case No. 461 of 2008. The injunctions sought were to restrain the second respondent (Skyship Company Limited) from breaching the terms of the contract dated 1st August 2000 between the applicant and the second respondent by allowing or permitting the first respondent (County Council of Transmara) to operate hot air balloon safaris business within the exclusive zone as defined in the contract, and to restrain the first respondent from procuring a breach of the contract by inducing the second respondent to allow or permit the first respondent to operate hot air balloon safaris business within the exclusive zone defined in the said contract.

Issues

1. Whether the applicant has an arguable appeal with overwhelming chances of success
2. Whether the success of the intended appeal would be rendered nugatory if the application is refused

Reasoning

The court accepted that the intended appeal is arguable, but found difficulties in demonstrating that the success of the appeal would render the application nugatory. The court concluded that the application cannot succeed as both limbs have to be satisfied before the applicant can benefit from the provisions of rule 5(2) (b) of the Rules.

Outcome

Dismissed