Jean P. De-leu v Adrian G. Muteshi [1995] KECA 157 (KLR)

The Court held that the rule 74 notice of appeal is what gives it jurisdiction, coterminous with the superior court's under order 41 rule 4. Relying on Githunguri, rule 5(2) confers an independent original jurisdiction exercised de novo, unlike the conditional order 41 rule 4 jurisdiction. Hence the applicant's informal stay application in the superior court did not bar this application, and the preliminary objection failed.

The Court reproduced the orders in full to demonstrate that mandatory orders must be clear, precise and without difficulty of compliance. In this case the orders did not identify with sufficient precision which particular trees were to be cut down. It is not enough for a defendant to know the position constitutes a wrong; he must be told exactly what change is required to comply.

Citing KIG Bar & Grocery Limited vs Gatabaki, the Court held that the normal principles for granting a temporary mandatory injunction must be considered: substantial undertaking as to damages, hardship the order will create, and whether restoration to the status quo ante is possible. The learned judge considered none of these, and the drastic nature of uprooting long-growing, aesthetically pleasant trees raised non-frivolous questions.

The Court found the proposed appeal not frivolous, raising real questions about whether damages would be an adequate remedy and whether the nuisance called for the drastic remedy of a temporary mandatory injunction. Since trees take long to grow, their removal pending appeal would render any success on appeal nugatory, justifying a stay.