George Gitau Wainaina v Kenya Commercial Bank Limited & 2 others [2015] KECA 226 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop a KCB land sale, confirming judges can dismiss injunction applications once no prima facie case is shown.
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 learned judge erred in failing to consider the evidence on record in its entirety
- 2.Whether the learned judge erred in failing to consider the supplementary affidavit sworn on 6th October, 2009
- 3.Whether the learned judge erred in holding that the conditions for granting an injunction had not been satisfied
- 4.Whether the learned judge considered extraneous matters and thereby arrived at an erroneous decision
Key legal issues
#Interference with exercise of discretion on appeal
The Court of Appeal will not interfere with a discretionary decision except in exceptional circumstances such as misdirection in law, misapprehension of facts, consideration of wrong factors, failure to consider relevant factors, or a plainly wrong decision.
The Court adopted Madan JA's formulation in United India Insurance Co. Ltd v. East African Underwriters (Kenya) Ltd, listing five grounds on which an appellate court may disturb a discretionary ruling. Since the judge below correctly applied the Giella principles and made no such error, the appeal failed.
Sequential application of the Giella injunction principles
An applicant for an interlocutory injunction must establish a prima facie case with a probability of success; only if that is established does the court move to irreparable harm and then balance of convenience. A court may properly stop at the first stage if it fails.
Relying on Export Processing Zones Authority v Kapa Oil Refineries Limited, the Court affirmed that the three limbs are separate, distinct and logical hurdles to be surmounted sequentially. The judge below found no prima facie case and was entitled not to address the remaining limbs.
Definition of a prima facie case
A prima facie case in a civil application is a case which, on the material presented, a tribunal properly directing itself will conclude there exists a right apparently infringed by the opposite party so as to call for an explanation or rebuttal.
The Court restated the Mrao v. First American Bank of Kenya Ltd definition. Applying it, the appellant, who was neither the registered owner nor the chargor and knew the title was encumbered and that no redemption sums were paid, had no prima facie case against the exercise of the chargee's statutory power of sale under Section 73(a) of the Registered Land Act.
Legal principles established
#- An appellate court will only interfere with the exercise of discretion by a lower court in exceptional circumstances, including where the judge misdirected himself in law, misapprehended the facts, took into account or failed to take into account relevant considerations, or where the decision is plainly wrong.
- The conditions for an interlocutory injunction must be considered sequentially: prima facie case first, then irreparable harm, then balance of convenience; if no prima facie case is established the court need not consider the other limbs.
Court orders
#- 1.Appeal dismissed with costs to the 2nd respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Machakos
- HCCC No. 113 of 2009
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Appellate Jurisdiction Act (appeal from interlocutory ruling of the High Court)
Relief refused
#Interlocutory injunction restraining the respondents from dealing with the suit property pending hearing of the main suit
The appellant failed to establish a prima facie case with a probability of success; the judge was entitled to stop at the first limb of the Giella test
Costs
Appeal dismissed with costs to the 2nd respondent.
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.
This appeal has no merit and we dismiss it with costs to the 2nd respondent.
this Court has to keep in mind that it can only interfere with the exercise of discretion by the lower court in exceptional circumstances.
The learned judge was entitled not to delve into the other limbs having found that there was no prima facie case established by the appellant.
A prima facie case in a civil application includes but is not confined to a genuine and arguable case.
the 1st respondent was entitled to exercise its statutory power of sale because neither the chargor nor the appellant had offered to redeem the charged property by paying the sum owed to the 1st respondent.
Issues in the judgment
#The judgment inconsistently describes the appellant's application and suit: it refers to 'the supplementary affidavit by the 1st appellant' although the appellant is the sole plaintiff/appellant, and elsewhere '1st appellant' is not a defined party in the title.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Gitau Wainaina v Kenya Commercial Bank Limited & 2 others [2015] KECA 226 (KLR)", Case Analysis (2015). Civil Appeal No. 62 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/226/eng@2015-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.