National Bank of Kenya Ltd & 2 Others v Sam-Con Ltd
The bottom line
#Kenya's Court of Appeal stopped a company from evicting bank-appointed receivers, confirming judges cannot grant injunctions after finding no prima facie case.
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 applicants have an arguable point in the intended appeal
- 2.Whether the intended appeal would be rendered nugatory if a stay/injunction is not granted
Key legal issues
#Whether a judge may grant an injunction after expressly finding no prima facie case
It is arguable that a judge who expressly finds no prima facie case with probability of success cannot then grant an order amounting to an injunction.
The High Court found the respondent, an admitted debtor, had no prima facie case against its creditor, yet proceeded to make an order that in effect was an injunction. The Court of Appeal held this was an arguable misdirection, satisfying the arguability limb of rule 5(2)(b).
Whether equitable considerations beyond the settled Giella conditions may justify an interlocutory injunction
No; the settled conditions in Giella v Cassman Brown govern, and introducing other circumstances was rejected in Abel Salim v Okong'o.
The High Court had relied on equitable circumstances and party conduct. The Court of Appeal held that such a course was roundly rejected by the Court of Appeal in Abel Salim & Others v Okong'o, making this a second arguable ground of appeal.
Whether the appeal would be rendered nugatory without a stay
Yes; the Court was satisfied the intended appeal would be rendered nugatory if a stay was not granted.
Having found arguable points, the Court applied the second limb of the rule 5(2)(b) test and was satisfied on the facts that the intended appeal would be rendered nugatory absent a stay, so the application succeeded as prayed.
Legal principles established
#- The conditions for granting an interlocutory injunction are settled: prima facie case, irreparable injury not compensable by damages, and balance of convenience if in doubt.
- A court may consider the balance of convenience only where it is in doubt after finding on the prima facie case.
Court orders
#- 1.An order restraining the respondent from removing the 2nd and 3rd applicants from the respondent's premises or interfering with the receivership pending the hearing and determination of the application and the intended appeal
- 2.A stay of execution of the orders made by Mwera J on 14 May 2003 pending the hearing and determination of the intended appeal
- 3.Costs of the application to abide the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi, Milimani Commercial Courts
- HCCC No 174 of 2003
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
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.
The application succeeds and we hereby grant it as prayed with costs to abide the indeed appeal.
First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.
Secondly the court will decide an application on the balance of convenience only if it is in doubt.
With respect, we think this is an arguable point in the intended appeal.
Issues in the judgment
#Typographical error in the costs order in the final paragraph.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Bank of Kenya Ltd & 2 Others v Sam-Con Ltd", Case Analysis (2003). Civil Application No NAI 154 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/197/eng@2003-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.