(tunoi, O’kubasu & Keiwua Jj A) v Savage & 4 Others
The bottom line
#Kenya's Court of Appeal upheld an order stopping a developer from building a petrol station in a residential Nairobi estate pending full trial.
What this practically means
#Executive summary
#Key legal issues
#What principles govern the grant of a temporary injunction?
The settled Giella v Cassman Brown test applies: the applicant must show a prima facie case with probability of success; that damages would not adequately compensate him if the injunction is refused and he ultimately succeeds; and, if the court is in doubt on either limb, the balance of convenience.
The court reaffirmed that these principles are well settled and clearly spelt out in Giella v Cassman Brown & Co Ltd. It verified that the learned judge had applied them: he found a prima facie case, no prejudice to the appellant, that damages would not adequately compensate the respondents because what they sought to prevent transcends monetary valuation, and that the balance of convenience favoured the grant.
Was the High Court judge's exercise of discretion in granting the temporary injunction proper?
Yes. The judge had the correct principles in mind and could not be faulted; the temporary injunction was properly granted to maintain the status quo until the final determination of the suit.
The appellant bore the burden of showing that the judge misdirected himself in the exercise of his discretionary jurisdiction, which was not demonstrated. The judge expressly found a prima facie case, absence of prejudice to the appellant, inadequacy of damages as a remedy, and that the balance of convenience favoured the grant. The Court of Appeal, having considered the nature of the suit, the material before the judge and the arguments on appeal, found no basis for interfering.
Was the injunction 'draconian' as contended by the appellant?
No. The injunction merely stopped any further development pending the final determination of the suit in the superior court.
The court considered the complaint that the orders had far-reaching effect but saw nothing draconian in orders that simply held the development in check until trial. This accorded with the respondents' contention that, the land being residential property, all matters were to be held in check until final determination, so that the status quo was maintained pending a full trial.
Could the appeal court determine whether development permission had been granted, or whether the Commissioner of Lands should have been joined?
No. Both questions are matters for the trial court at the hearing of the suit.
Emphasising that it was dealing with an interlocutory appeal, the court cautioned against prejudging issues in a way that would prejudice the trial, even reminding counsel that he was at risk of arguing the main suit. The appellant's attempt to show that permission to build the petrol station and subdivide had been granted, and the complaint about non-joinder of the Commissioner of Lands, were accordingly left for determination at the full trial.
Legal principles established
#- An applicant for a temporary injunction must satisfy the Giella test: a prima facie case with probability of success; that damages would not adequately compensate; and, if the court is in doubt on either, the balance of convenience.
- An appellate court will not disturb a judge's exercise of discretion in granting a temporary injunction where the judge applied the correct principles and no misdirection is shown.
- A temporary injunction is properly granted to maintain the status quo until the final determination of the suit.
Court orders
#- 1.The appeal is dismissed.
- 2.The appellant to pay the respondents' costs of the appeal (appeal 'dismissed with costs to the respondents').
- 3.City Council of Nairobi to bear its own costs.
- On appeal from
- High Court of Kenya (superior court)
- Jurisdiction invoked
- Not expressly stated in the judgment; the matter was before the Court of Appeal as an interlocutory appeal from a decision of the superior court (High Court).
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Charles Jonyo Osicho v City Council Of Nairobi & 2 others [2014] KEELC 382 (KLR)[2014] KEELC 382 (KLR)13 May 2014
Cite this brief
#Cite this brief
Caselaw, "(tunoi, O’kubasu & Keiwua Jj A) v Savage & 4 Others", Case Analysis (2002). Civil Appeal No. 244 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/1/eng@2002-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.