Agip (Kenya) Limited v Appollos Kennedy Mwangi T/A Appollos Service Station [1996] KECA 68 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed the Giella injunction rules still apply and you cannot claim a contract is unfair while asking a court to enforce it temporarily.
What this practically means
#Executive summary
#Key legal issues
#Continued binding authority of Giella v Cassman Brown on interlocutory injunctions
The Giella principles remain the law in Kenya and courts are bound to apply them notwithstanding American Cyanamid
The trial Judge had expressed reservations about applying the Giella principles in Kenya. The Court of Appeal held that those principles, laid down by the Court of Appeal for East Africa and reiterated in Abel Salim v Okong'o, remain binding on all courts in Kenya until overruled by this Court. The Judge's reservations raised the probability that his personal feelings clouded his exercise of judicial discretion, justifying appellate interference.
Validity of the termination notices and the Judge's failure to construe them
The Judge misdirected himself by treating two inconsistent notices as the basis of the application; only the second notice was in issue and it complied with clause 2 of the agreement
The first notice was patently invalid as it purported to terminate the licence otherwise than in accordance with clause 2. The second notice gave 30 days' notice and complied with the termination clause in every material particular. Counsel for the respondent admitted the breaches alleged. The Judge made no attempt to construe the notice or express a view on its validity, a relevant matter he failed to take into account.
Plea of unconscionability as a bar to injunctive relief enforcing the agreement
A party seeking to avoid an agreement on grounds of unconscionability cannot simultaneously obtain an order keeping that agreement in force, even temporarily
The plaint averred the agreement was unconscionable and sought a declaration to that effect. By that plea the respondent sought to escape his obligations under the agreement. The Court held that this alone disentitled him to a temporary injunction keeping the agreement alive, since other remedies, including damages, remained available to him if his claim succeeded at trial.
Appellate interference with judicial discretion
Interference is justified where the judge failed to take relevant matters into account; here the Judge ignored the notice's validity, the unconscionability plea, and the admitted breaches
Restating Mbogo v Shah, Sir Charles Newbold's formulation, and D.T. Dobie v Wabwire, the Court held it would not substitute its discretion for that of a judge unless the judge misdirected himself or failed to consider relevant matters. Here three relevant matters were overlooked, leading conclusively to the conclusion that the discretion was exercised wrongly, warranting interference.
Legal principles established
#- The Giella v Cassman Brown principles for granting interlocutory injunctions remain binding on Kenyan courts until overruled by the Court of Appeal
- An appellate court will not interfere with a judge's exercise of discretion unless satisfied the decision is clearly wrong, based on misdirection, irrelevant considerations, or failure to consider relevant matters resulting in a wrong conclusion
- A party who pleads that an agreement is unconscionable, thereby seeking to avoid it, disentitles himself to an order keeping the agreement in force, even temporarily
Court orders
#- 1.Appeal allowed
- 2.Ruling and order of Rimita, J dated 31st October 1994 set aside
- 3.Substituted therefor an order dismissing the respondent's application dated 29th June 1994 with no order as to costs
- 4.Each party to bear its own costs of the appeal
- On appeal from
- High Court of Kenya at Nakuru
- H.C.C. Suit No. 443 of 1994
- Jurisdiction invoked
- First appeal to the Court of Appeal against an interlocutory ruling of the High Court (appeal as of right from the High Court under the Constitution and the Appellate Jurisdiction Act, as framed by the judgment; no specific provision quoted)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Agip (Kenya) Limited v Appollos Kennedy Mwangi T/A Appollos Service Station [1996] KECA 68 (KLR)", Case Analysis (1996). Civil Appeal No. 166 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/68/eng@1996-01-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.