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Court of AppealDismissedNot stated in the judgment· [1979] KECA 1 (KLR)

Mureithi v City Council of Nairobi [1979] KECA 1 (KLR)

Court of Appeal
11 July 1979
CMC B MadanKPK D PotterCMC H E Miller
901 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that a temporary injunction will be refused where money damages can adequately compensate the applicant.

What this practically means

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Executive summary

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This was an appeal to the Court of Appeal against a High Court ruling refusing the plaintiff a temporary injunction under Order XXXIX rules 1 and 2 of the Civil Procedure Rules. The plaintiff sought to restrain the defendant from demolishing a kiosk she had built at Jericho open-air market and from harassing her in relation to it. The judge below had refused the injunction on the ground that the plaintiff could be adequately compensated in damages if the Council had derogated from its grant, and gave leave to appeal. Writing the leading judgment with which Potter JA and Miller JA agreed, Madan JA reaffirmed that an appellate court interferes with the grant or refusal of an interim injunction only where the discretion below was not exercised judicially, citing Sargeant v Patel. The court applied the settled East African conditions for interlocutory injunctions as stated in Giella v Cassman Brown and reaffirmed in Abdul Salim v Okong'o: probability of success, irreparable harm not adequately compensable in damages, and, if in doubt, the balance of convenience. It held that the American Cynamid decision did not alter that position, though Madan JA endorsed Lord Diplock's statement that no interlocutory injunction should normally be granted where damages would be an adequate remedy and the defendant can pay them. Since the plaintiff's occupation of the site was temporary and terminable, and the defendant was financially able to pay damages including loss of profits, she would suffer no irreparable injury. The appeal was dismissed with costs, affirming the High Court's refusal of the injunction.

Key legal issues

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01

Circumstances in which an appellate court may interfere with the grant or refusal of an interim injunction

Holding

The court will interfere only where it is shown the discretion of the court below was not exercised judicially.

Reasoning

An interim injunction is a matter of discretion for the judge at first instance. The appellate court does not substitute its own discretion merely because it might have decided differently; it must be shown that the discretion was exercised on wrong principles or not judicially, citing Sargeant v Patel.

p. 1
02

Whether damages would be an adequate remedy such that an injunction should be refused

Holding

Where the breach complained of, if established, can be compensated in damages and the defendant is financially able to pay them, an interlocutory injunction should not normally be granted.

Reasoning

Relying on Lord Diplock in American Cynamid and Ibrahim v Sheikh Bros Investment Ltd, the court held that adequacy of damages defeats the irreparable-harm condition. The plaintiff's occupation was temporary and terminable at the defendant's discretion, so she would not suffer irreparable injury.

p. 2
03

Whether the American Cynamid case displaced the East African test for interlocutory injunctions

Holding

The contrary decision in American Cynamid did not alter the settled East African position in Giella v Cassman Brown.

Reasoning

Mustafa JA in Abdul Salim v Okong'o had already held that the Giella conditions remained good law notwithstanding American Cynamid. Madan JA agreed with Lord Diplock's formulation of the object of the interlocutory injunction but saw no cause to depart from the Giella conditions.

p. 2

Legal principles established

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  • An appellate court will interfere with a discretionary decision on an interim injunction only if the discretion was not exercised judicially
  • The settled conditions for granting an interlocutory injunction in East Africa are probability of success, irreparable harm not adequately compensable in damages, and, if in doubt, the balance of convenience
  • Where damages would be an adequate remedy and the defendant can pay them, no interlocutory injunction should normally be granted

Court orders

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  1. 1.Appeal dismissed with costs
On appeal from
High Court
Not stated in the judgment
Jurisdiction invoked
Appeal against an order granting or refusing an interim injunction, with leave to appeal granted by the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mureithi v City Council of Nairobi [1979] KECA 1 (KLR)", Case Analysis (1979). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1979/1/eng@1979-07-11

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