Ephrahim Mbae Thuranira & 2 others v Gilbert Kabeere Mbijiwe & 2 others [2008] KECA 286 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed the applicants' bid for an injunction because winning their appeal would only restore their lawsuit, not protect the land itself.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants satisfied the second limb of the rule 5(2)(b) test - that the intended appeal would be rendered nugatory without an injunction
The court held the nugatory limb was not satisfied because the ownership and possession of the plots would not be in issue in the intended appeal; the only dispute was whether the striking out of the suit was justified, and success would merely restore the suit to the cause list.
The applicants' claim in the superior court was only for compensation for damaged premises and a permanent injunction; they claimed ownership and did not seek possession or title. The object of an interlocutory injunction, per Halsbury, is to preserve matters pending trial. Since the plots' status would not affect the outcome of the intended appeal, no substratum of the appeal would be wiped out without the injunction.
Scope of the intended appeal
The only issue in the intended appeal would be whether the striking out of the applicants' suit was justified; ownership of the landed property would not be in issue.
The applicants were seeking damages for damage to property and their suit was struck out; they alleged they were owners and therefore were not claiming title. Accordingly plots 57A, 57B and 59 were not the subject-matter of the proceedings before the superior court, narrowing what the intended appeal could achieve.
Legal principles established
#- To succeed on an application under rule 5(2)(b) of the Court of Appeal Rules, an applicant must demonstrate both that the appeal or intended appeal is arguable (not frivolous) and that, unless a stay or injunction is granted, the success of the appeal will be rendered nugatory.
- In exercising rule 5(2)(b) jurisdiction the Court exercises original and unfettered discretionary jurisdiction.
- An applicant must satisfy both limbs of the rule 5(2)(b) test; failure on the nugatory limb is fatal even where the appeal is assumed arguable.
Court orders
#- 1.The application for an injunction pending the hearing and determination of the intended appeal was dismissed
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 15 of 2003
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ephrahim Mbae Thuranira & 2 others v Gilbert Kabeere Mbijiwe & 2 others [2008] KECA 286 (KLR)", Case Analysis (2008). Civil Appli No. 324 of 2007 (UR 224/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/286/eng@2008-04-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.