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Court of AppealDismissedCivil Appeal No. 244 of 1999· [2002] KECA 202 (KLR)

Michael Gitau v Pamela Savage & 4 others

Court of Appeal of Kenya
15 February 2002
2,102 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that residents can stop unauthorised construction in their neighbourhood while a case is ongoing, if they show a strong case.

What this practically means

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Executive summary

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This was an interlocutory appeal to the Court of Appeal at Nairobi against a ruling of Mitey, J. delivered on 8th March 1999 in H.C.C.C. No. 2250 of 1998, by which temporary injunctions were granted restraining the appellant, Michael Gitau, from continuing with the unauthorised development of a petrol station and commercial centre on LR No. 7413/5 and its subdivision LR 7413/26 within the residentially zoned Mukoma, Kisembe and Kikeni Estates off Magadi Road. The respondents, residents and proprietors in the estates, sued the appellant and the City Council of Nairobi, alleging that the development breached the Land Planning Act (Cap 303) and would cause nuisance, devalue their properties and worsen security. The High Court found a prima facie case, held damages inadequate because what the respondents sought to prevent transcended monetary valuation, and found the balance of convenience favoured the injunction. Before the Court of Appeal, counsel for the appellant abandoned the first ground and argued that the injunction was draconian, that planning permission had been granted, and that the Commissioner of Lands should have been joined. The Court, in a single judgment of the bench (Tunoi, O'Kubasu and Keiwua, JJ.A.), restated the Giella v Cassman Brown principles for temporary injunctions, held that the judge had properly exercised his discretion, and declined to determine trial-bound issues such as planning permission and joinder on an interlocutory appeal. The appeal was dismissed with costs to the respondents, the City Council of Nairobi bearing its own costs.

Key legal issues

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01

Whether the temporary injunction was properly granted under the settled principles

Holding

The Court affirmed that the judge correctly applied the Giella v Cassman Brown principles: a prima facie case was established, damages would not adequately compensate, and the balance of convenience favoured the injunction.

Reasoning

The Court restated the three-part Giella test and found the learned judge had each principle in mind: he found a prima facie case, no prejudice to the appellant, damages inadequate because what the respondents sought to prevent transcended monetary valuation, and the balance of convenience tilting in their favour. The injunction merely stopped further development pending trial, maintaining the status quo, and the judge's discretionary decision could not be faulted.

p. 4
02

Whether the injunction was draconian

Holding

The Court rejected the submission that the injunction was draconian, holding it merely stopped further development pending final determination of the suit.

Reasoning

Counsel for the appellant complained that the injunction had far-reaching effects. The Court considered the point and saw nothing draconian in an order that merely halted further development until the suit was determined. Similarly, arguments about planning permission and the joinder of the Commissioner of Lands were matters for the trial court, not the interlocutory appeal.

p. 3
03

Whether matters such as planning permission and joinder of the Commissioner of Lands could be resolved on the interlocutory appeal

Holding

The Court held these were matters for the trial court and declined to determine them on the interlocutory appeal.

Reasoning

The appellant sought to show that permission to build the petrol station and subdivide had been granted, and complained that the Commissioner of Lands should have been joined. The Court held both issues belonged to the trial court when the suit came up for hearing, since an interlocutory appeal must not prejudice the trial.

p. 3

Legal principles established

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  • The principles in Giella v Cassman Brown govern the grant of temporary injunctions: prima facie case with probability of success, damages not adequate remedy, and balance of convenience where the court is in doubt.
  • An appellate court will not interfere with a trial judge's exercise of discretion on a temporary injunction absent a showing that the judge misdirected himself.
  • On an interlocutory appeal, the appellate court must be careful not to determine issues that belong to the trial, lest it prejudice the trial.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal to the respondents
  3. 3.City Council of Nairobi to bear its own costs
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2250 of 1998
Jurisdiction invoked
First appellate jurisdiction over an interlocutory appeal from the High Court (Court of Appeal Act; appeal from a Ruling and Order of the High Court)

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, "Michael Gitau v Pamela Savage & 4 others", Case Analysis (2002). Civil Appeal No. 244 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/202/eng@2002-02-15

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