Kutima Investments Limited v Muthoni Kihara & another [2006] KECA 24 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a duplicate injunction application because the High Court had already granted identical protection.
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 Court should entertain a rule 5(2)(b) application for an injunction pending appeal where the applicant has already obtained the same injunction from the High Court.
- 2.Whether continuing with the parallel motion is an abuse of the process of the Court or, as the 2nd respondent submitted, res judicata.
- 3.Whether Madhupaper International Limited v Ken establishes a right to pursue two similar applications concurrently, one in the High Court and one in the Court of Appeal.
- 4.Whether the superior court's injunction, granted while this motion was pending, was validly made.
- 5.What orders should issue on the motion, including as to costs.
Key legal issues
#Whether an applicant who has obtained identical injunctive relief from the High Court may continue a parallel rule 5(2)(b) application in the Court of Appeal.
No. The motion is spent; continuing it is an abuse of process and it must be struck out.
The High Court and the Court of Appeal have concurrent jurisdiction to grant injunctions pending appeal. Here the High Court exercised that jurisdiction after an inter partes hearing and granted the injunction, the order remaining in force until final determination of the intended appeal. The applicant's rights were thereby safeguarded, and a further order of this Court would add nothing, since courts should not act in futility. The purpose of the principle governing concurrent proceedings is to avoid conflicting decisions on the same issues, so insisting on hearing the motion would abuse the Court's process.
Whether Madhupaper International Limited v Ken authorises a party to pursue two similar applications concurrently in the two courts.
It does not. The case recognises concurrent jurisdiction but does not sanction simultaneous prosecution of two similar applications; it notes the preference for the High Court to deal with such applications first.
The applicant relied on Madhupaper for a right to approach both courts for injunctions. The Court held the case says no such thing: its quoted passage explains that it is preferable for the High Court to deal with such an application first, because the appellate court would then have the advantage of knowing what the judge made of it, and it directs High Court judges to take note of the concurrent jurisdiction. Madhupaper also adopted the Erinford principle that a party's appeal, if successful, should not be rendered nugatory.
The object and effect of an injunction pending appeal.
The object is to safeguard the appellant's rights and prevent a successful appeal from being rendered nugatory; once the superior court has granted that protection and the order stands, the object is met whether or not the Court of Appeal adds further orders.
Restating Otieno v Ougo (No 2), the Court affirmed that an injunction pending appeal safeguards the appellant's rights and prevents the appeal, if successful, from being nugatory. The High Court had granted the injunction on the Erinford principle propounded by Megarry J and cited with approval in Madhupaper. With that order in place, the applicant's rights were safeguarded whether or not this Court added further orders for the same purpose, leaving no residual purpose for the appellate motion.
Whether the superior court's injunction, granted while the earlier Court of Appeal motion was pending, was validly made.
Ordinarily the later-filed High Court motion should have been stayed, but the order is not invalid for that reason alone; the superior court was perfectly entitled to exercise its jurisdiction to grant the injunction.
The applicant filed the High Court application on 9th May 2005, after filing this motion on 5th May 2005, explaining that the Court of Appeal could not hear the motion on a priority basis. Although the later motion should ordinarily have been stayed to await a decision on the earlier one, the Court held that this procedural irregularity did not invalidate the High Court's order, which was made after an inter partes hearing. Whether the respondents' challenge to that order would succeed was not a matter the Court could determine at that stage.
Legal principles established
#- Once the High Court has granted an applicant identical interlocutory relief which remains in force, a parallel application for the same relief in the Court of Appeal is an abuse of process and will be struck out; this rule binds the High Court when exercising its concurrent jurisdiction over injunctions pending appeal.
- Courts should not act in futility; where existing orders already safeguard a litigant's rights, an appellate court will make no further order for the same purpose.
- The principle governing concurrent proceedings in two courts exists to avoid conflicting decisions or findings on the same issues; a party may not run two similar applications simultaneously in the High Court and the Court of Appeal.
- The object of granting an injunction pending an appeal is to safeguard the rights of the appellant and to prevent the appeal, if successful, from being rendered nugatory.
Court orders
#- 1.The applicant's notice of motion under rule 5(2)(b) of the Court of Appeal Rules filed on 5th May 2005 struck out.
- 2.No order as to costs, the respondents having not formally applied to have the motion struck out.
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. 990 of 1999
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for injunction pending the lodging and determination of an intended appeal)
Relief refused
#Injunction pending the lodging and determination of the intended appeal sought in the rule 5(2)(b) motion
The High Court had already granted the applicant the same injunction after an inter partes hearing and that order remained in force until the final determination of the intended appeal; a further order of this Court would add nothing, as courts should not act in futility.
Hearing or continued pendency of the motion
Insisting on proceeding with the application after identical relief had been obtained in the superior court would be an abuse of the process of the Court, whose object is to avoid conflicting decisions on the same issues.
Costs
No order as to costs; "We, however, make no order as to costs, the respondents having not formally applied to have the motion struck out."
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.
It should therefore be and it is hereby ordered struck out. We, however, make no order as to costs, the respondents having not formally applied to have the motion struck out.
We agree that it will indeed be an abuse of the process of the Court to insist on proceeding with this application.
The general principle of law is that courts should not act in futility.
The object underlying the principle of concurrent proceedings is to avoid recording or issuing conflicting decisions or findings on the same issues.
the object of granting an injunction pending an appeal is to safeguard the rights of the appellant and to prevent the appeal if successful from being nugatory
In the circumstances, we do not think that this motion should be heard.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kutima Investments Limited v Muthoni Kihara & another [2006] KECA 24 (KLR)", Case Analysis (2006). Civ Appli 120 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/24/eng@2006-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.