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Court of AppealDismissedCivil Application No. NAI. 248 of 2011 (UR. 161/2011)· [2013] KECA 415 (KLR)

African Safari Club Limited v Commissioner of Police & 6 others [2013] KECA 415 (KLR)

Court of Appeal of Kenya
24 January 2013
JOJ. W. Onyango OtienoAVAlnashir VisramMartha Karambu KoomeM. K. Koome
2,398 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to reinstate African Safari Club to its Mombasa hotel, confirming courts rarely grant mandatory injunctions that grant the whole case early.

What this practically means

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Executive summary

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African Safari Club Limited applied to the Court of Appeal at Mombasa under Rule 5(2)(b) of the Court of Appeal Rules and sections 3, 3A and 3B of the Appellate Jurisdiction Act for preservatory and conservatory orders, and in the alternative a mandatory injunction, reinstating it to the Flamingo Beach Hotel property at Shanzu, Mombasa, pending an intended appeal against a ruling of Okwengu J delivered on 2 August 2011 in H.C. Petition No. 35 of 2011 declining conservatory orders. At the hearing, counsel for the applicant conceded that the applicant had been evicted from the property in June 2011, rendering the first three prayers otiose; the application accordingly turned on the mandatory injunction to reinstate. The Court restated the principles governing interlocutory mandatory injunctions, drawing on Megarry J in Shepherd Homes Ltd v Sandham as adopted in East African Fine Spinners v Bedi Investments and Kenya Airports Authority v Muigai, and Halsbury's Laws (vol. 24, para. 948): such relief is granted only in an unusually strong and clear case, and an order granting the major relief claimed in the suit should not issue at the interlocutory stage. Holding that reinstatement would leave nothing to await in the intended appeal, doubting the appeal's arguability, and finding the appeal would not be rendered nugatory if relief were refused, the Court dismissed the motion with costs. The ownership dispute remains pending before the High Court, on which the Court made no comment.

Key legal issues

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01

Principles governing the grant of a temporary mandatory injunction

Holding

A mandatory injunction is more drastic than a prohibitory one and will not normally be granted on an interlocutory application in the absence of special circumstances; the court must feel a high degree of assurance that the injunction was rightly granted.

Reasoning

The court adopted Megarry J's principles in Shepherd Homes Ltd v Sandham as applied by Gicheru JA in East African Fine Spinners and by this Court in Kenya Airports Authority v Muigai, citing Halsbury's Laws volume 24 paragraph 948: a mandatory injunction is interlocutorily available only where the case is clear, the act is simple and remediable, or the defendant attempts to steal a march on the plaintiff.

p. 4
02

Whether a mandatory injunction at the interlocutory stage that grants the whole substantive relief should issue

Holding

No; such an injunction would render the intended appeal academic since nothing would remain to be determined.

Reasoning

Counsel conceded the applicant was evicted in June 2011 and reconstruction was ongoing after a fire. Reinstating the applicant would effectively be a final order on ownership and possession. The applicant also failed to satisfy the twin Rule 5(2)(b) tests of arguability and nugatory-ness; the court expressed skepticism about the appeal's arguability.

p. 4

Legal principles established

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  • A mandatory injunction will only be granted at the interlocutory stage where the case is unusually strong and clear, and not where granting it would give the plaintiff the major relief claimed in the suit
  • An applicant under Rule 5(2)(b) must satisfy both limbs: an arguable appeal and that the appeal would be rendered nugatory absent relief

Court orders

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  1. 1.The motion seeking preservatory and conservatory orders and a mandatory injunction reinstating the applicant to the suit property is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Appellate Jurisdiction Actsections 3, 3A and 3B
  • Halsbury's Laws of Englandvolume 24, paragraph 948

Cases cited (5)

  • Githunguri vs Jimba Credit Corporation Ltd (No. 2)
    [1988] KLR 838
  • Shepherd Homes Ltd vs Sandham
    [1971] 1 Ch. 34
  • East African Fine Spinners Ltd (In Receivership) & 3 Others vs Bedi Investments Ltd
    Civil Appl. Nai. 72 of 1994 (ur)
  • Kenya Airports Authority vs Paul Njogu Muigai & 2 Others
    Civil Application No. Nai. 29 of 97 (ur)
  • Locabaill International Finance Ltd. vs. Agroexport
    [1986] 1 All E.R. 901
On appeal from
High Court of Kenya at Mombasa
H.C. Petition No. 35 of 2011
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules and sections 3, 3A and 3B of the Appellate Jurisdiction Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "African Safari Club Limited v Commissioner of Police & 6 others [2013] KECA 415 (KLR)", Case Analysis (2013). Civil Application No. NAI. 248 of 2011 (UR. 161/2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/415/eng@2013-01-24

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