FARMERS INDUSTRIES LIMITED vs KENYA COMMERCIAL FINANCE CO. LTD & ANOTHER [1997] KECA 235 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop an auction because the company suing had only asked for money damages, not the property itself.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant had arguable points to be canvassed on the intended appeal
- 2.Whether the appeal, if successful, would be rendered nugatory in the absence of an injunction
Key legal issues
#Whether an injunction pending intended appeal should issue
The application was dismissed. The court found some merit in the arguability ground but held the nugatory limb failed because damages were an adequate remedy.
The court applied the established two-limb test for relief pending appeal: the applicant must show arguable points and that the appeal would be rendered nugatory if it ultimately succeeded. While the first ground had some merit, the applicant's plaint did not seek specific performance, the equitable relief the injunction would have preserved. In those circumstances a successful appeal would not be nugatory because damages would suffice, and the application failed.
Legal principles established
#- An applicant for an injunction pending appeal must satisfy both limbs: arguable grounds and that the appeal would be nugatory if successful; where the applicant never pleaded the equitable relief that the injunction would preserve, damages are a sufficient remedy and the nugatory limb fails
Court orders
#- 1.Dismissal of the application for injunction pending intended appeal
- 2.Costs of the application to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 23 of 1997
- Jurisdiction invoked
- Inherent jurisdiction of the Court of Appeal to grant interlocutory relief pending an intended appeal (Rule 5(2)(b) jurisdiction, not expressly cited in the ruling)
Relief refused
#Injunction pending intended appeal
Damages would be an adequate remedy since the applicant did not seek specific performance in the plaint, so the appeal would not be nugatory
Costs
Application dismissed with costs to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
We see some merit in the first ground, but since the applicant did not in his plaint seek the equitable relief of specific performance, it would seem to us that it can not be said that the appeal if successful, would be nugatory, damages would be sufficient remedy in the particular circumstances of this matter.
The order that therefore commands itself to us, is to dismiss this application with costs. It is so ordered.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "FARMERS INDUSTRIES LIMITED vs KENYA COMMERCIAL FINANCE CO. LTD & ANOTHER [1997] KECA 235 (KLR)", Case Analysis (1997). Civil Application No. NAI 81 of 1997 (UR. 36/97). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/235/eng@1997-04-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.