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Court of AppealAllowedCivil Application No NAI 127 of 1986

MAHESCHANDRA SHAMJIBHAI GHEEWALA v ARUNA B. GHEEWALA (SUED IN HER PERSONAL CAPACITY AND AS EXECUTRIX OF THE ESTATE OF BHUPENDRA S GHEEWALA) ALKA B GHEEWALA JAGDISH R. MORJARIA [1986] KECA 6 (KLR)

Court of Appeal
14 October 1986
656 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 disputed property should generally be preserved by injunction while an appeal is pending, so a win on appeal still matters.

What this practically means

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Executive summary

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This was an application under rule 5(2)(b) of the Court of Appeal Rules in an intended appeal against an order of Shields, J in High Court Civil Case 1395 of 1986 dated July 23, 1986. The applicant sought an injunction to preserve the subject matter of the dispute - shares whose sale was contested - pending the hearing of the appeal. The Court of Appeal (Nyarangi, Platt and Gachuhi, JJA) held the application irresistible: the affidavits disclosed clear issues of fact and law, there was a serious dispute as to ownership of the shares, the applicant prayed for specific performance of the disputed sale, and the appeal could not be said to be obviously without merit or frivolous. The court stated the usual rule that an injunction is granted to preserve property pending determination of the dispute, and found no special circumstances displacing that rule. It distinguished Madhupaper International Limited v Paper Kerb as turning on peculiar facts, and grounded its decision in the established practice of the court in M M Butt v The Rent Restriction Tribunal and Erinford Properties Ltd v Cheshire County Council, expressly not in Giella v Cassman Brown. The court articulated the purpose of rule 5(2)(b) applications: preserving the subject matter to safeguard the appellant's rights and prevent a successful appeal from being nugatory. The application was allowed, the injunction granted, with costs to the applicant. A further order dated October 21, 1986 required a written undertaking as to damages, filing of the appeal within 21 days, allocation of the earliest hearing date, and gave liberty to apply.

Questions the Court framed

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

  1. 1.Whether an injunction should be granted under rule 5(2)(b) to preserve the subject matter (disputed shares) pending the hearing of the intended appeal
  2. 2.Whether special circumstances existed to displace the general rule that the subject matter of an appeal should be preserved

Key legal issues

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01

Grant of injunction pending appeal under rule 5(2)(b)

Holding

The court granted the injunction, holding the appeal was not frivolous given a serious dispute as to ownership of the shares, and no special circumstances justified departing from the preservation rule.

Reasoning

The court distinguished Madhupaper International Limited v Paper Kerb as turning on its peculiar facts. It aligned the case with the established practice in M M Butt v The Rent Restriction Tribunal and Erinford Properties Ltd v Cheshire County Council, and expressly rejected reliance on the Giella v Cassman Brown test for interlocutory injunctions, emphasising preservation of the subject matter and avoidance of a nugatory appeal.

p. 2

Legal principles established

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  • On an intended appeal where there is a serious dispute as to ownership of the subject matter and the appeal is not frivolous, the usual rule is that an injunction will be granted to preserve the property pending determination of the dispute.
  • The purpose of a rule 5(2)(b) application is preservation of the subject matter so the appeal, if successful, is not rendered nugatory.

Court orders

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  1. 1.The application for injunction is allowed and an injunction is granted preserving the subject matter pending the appeal
  2. 2.The applicant shall give the usual undertaking as to damages in writing
  3. 3.The appeal shall be filed within the next 21 days
  4. 4.The earliest possible date for hearing the action shall be allocated
  5. 5.Liberty to apply
  6. 6.Costs of the application to the applicant

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
Civil Case 1395 of 1986
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (in the matter of an intended 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.

The application for an injunction under rule 5(2) (b) of the Rules of this court is in our judgement irresistable.
p. 1Strength of the applicant's case under rule 5(2)(b)
In these circumstances the usual rule is that an injunction is granted to preserve the property pending the determination of the dispute.
p. 1General preservation rule pending appeal
The purpose of an application such as this under rule 5(2) (b) is to preserve the subject –matter in dispute so that the rights of an appellant are safeguarded and to prevent the appeal, if successful, from being nugatory.
p. 2Purpose of rule 5(2)(b) applications
The applicant shall give the usual undertaking as to damages in writing.
p. 3Further orders / undertaking as to damages

Issues in the judgment

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minor

The document contains two differently dated rulings by the same coram (14 October 1986 and 21 October 1986), the second being a 'FURTHER ORDER OF THE COURT' supplementing the first.

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, "MAHESCHANDRA SHAMJIBHAI GHEEWALA v ARUNA B. GHEEWALA (SUED IN HER PERSONAL CAPACITY AND AS EXECUTRIX OF THE ESTATE OF BHUPENDRA S GHEEWALA) ALKA B GHEEWALA JAGDISH R. MORJARIA [1986] KECA 6 (KLR)", Case Analysis (1986). Civil Application No NAI 127 of 1986. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/6/eng@1986-10-21

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