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Court of AppealPartially AllowedCivil Appeal No. 361 of 2017· [2018] KECA 97 (KLR)

Rev. Joseph Ntombura v Godfrey Simiyu & 4 others

Court of Appeal
7 December 2018
PWP. N. WakiSKS. Gatembu KairuOTOtieno-Odek
3,882 words in judgment
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The bottom line

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Kenya's Court of Appeal lifted orders blocking Rev. Ntombura from serving as Methodist Church Bishop, ruling the trial court applied Kenya's injunction test backwards.

What this practically means

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Executive summary

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This interlocutory appeal arose from a Ruling of the High Court (Sergon J.) dated 22 July 2016 in High Court Civil Case No. 360 of 2015, in which the 1st to 4th respondents sought to restrain Rev. Joseph Ntombura from holding office as presiding Bishop of the Methodist Church in Kenya pending trial of a suit alleging that he was unqualified and had mismanaged the Church. The High Court granted the restraining orders. The appellant appealed on grounds including lack of locus standi, want of jurisdiction because of the Church's internal dispute resolution mechanism, failure of the Giella v Cassman Brown test, unenforceability, and balance of convenience. The 5th respondent, the Church, supported the appeal. The Court of Appeal confined itself to the one issue that would not compromise the pending main suit: whether the threshold for granting interlocutory injunctive orders was met. Applying Giella v Cassman Brown as restated in Nguruman Limited v Jan Bonde Nielsen, the Court accepted that a prima facie case had been established, but held that the trial judge had inverted the irreparable harm test by finding that the appellant, rather than the applicants, would suffer irreparable harm. The Court further held that the balance of convenience favoured the Church and its institutions, which would be paralysed by the orders, drawing on Richard Owino v Richard Abwao. The Court concluded that the learned judge erred in granting the injunctive and restraining orders, allowed the appeal, set aside the Ruling of 22 July 2016 in its entirety together with all consequential orders, and ordered the 1st to 4th respondents to bear the costs of the application before the trial court and the costs of the appeal.

Key legal issues

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01

Whether the trial judge properly found a prima facie case

Holding

The Court was satisfied that the 1st to 4th respondents had established a prima facie case with probability of success.

Reasoning

Both the supporting affidavit and the replying affidavit raised contested issues requiring a full hearing, but on the documented evidence the Court accepted that a prima facie case had been laid out. This ground therefore did not found the appeal.

p. 4
02

Whether the irreparable harm limb of the Giella test was correctly applied

Holding

The trial judge erred: he found the appellant, not the applicants, would suffer irreparable harm, which inverts the second Giella test.

Reasoning

The second Giella test asks whether the applicant will suffer irreparable injury not adequately compensable in damages. The trial judge instead found that the respondent and the Church would suffer such harm. In the absence of a finding that the applicants would suffer irreparable harm, the orders should not have issued.

p. 4
03

Where the balance of convenience lay

Holding

The balance of convenience tilted in favour of the Church, negating the grant of injunctive orders.

Reasoning

Relying on the reasoning in Richard Owino v Richard Abwao, the Court held that ousting the Bishop pending trial would paralyse the Church and its institutions. It was uncontroverted that the Church had a property manager safeguarding Church property, so restraining the appellant was unnecessary and oppressive.

p. 5

Legal principles established

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  • An interlocutory injunction will not issue where the applicant has not demonstrated that the applicant (not the respondent) would suffer irreparable harm not compensable in damages.
  • Where the balance of convenience favours the party or institution against whom the injunction is directed, the injunctive orders ought not to be granted.
  • The Court of Appeal will interfere with a trial judge's exercise of equitable discretion in granting injunctions only where the discretion was not exercised judicially.

Court orders

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  1. 1.Appeal allowed
  2. 2.The Ruling delivered on 22nd July 2016 by the High Court of Kenya and all consequential orders set aside in entirety
  3. 3.The 1st to 4th respondents to bear the costs of the application before the trial court and the costs of this appeal
On appeal from
High Court of Kenya at Nairobi
High Court Civil Case No. 360 of 2015
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over an interlocutory appeal from the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Rev. Joseph Ntombura v Godfrey Simiyu & 4 others", Case Analysis (2018). Civil Appeal No. 361 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/97/eng@2018-12-07

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