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Court of AppealDismissedCivil Appeal No. 6 of 2018

Samuel Njoroge (suing on behalf of the Estate of the Late Geoffrey Gikaru Njoroge) v Wanje Holding Limited [2018] KECA 305 (KLR)

Court of Appeal
20 September 2018
2,311 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to stop a property buyer from developing land, partly because the claimant hid an existing related case.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Visram, Karanja and Koome, JJ.A) dismissed an appeal against a ruling of the Environment and Land Court (Yano, J.) dated 15 June 2017 in E.L.C No. 307 of 2016, which had declined an interlocutory injunction sought by the appellant, suing on behalf of the estate of the late Geoffrey Gikaru Njoroge, against Wanje Holding Limited. The appellant claimed ownership of Parcel No. MN/VI/2360, assertedly in his family's possession since 1977, and contended that its sale by public auction pursuant to National Bank of Kenya's floating charge over Kenatco's assets was invalid under the doctrine of lis pendens because H.C.C.C No. 265 of 1996 remained pending. The respondent, having purchased at auction after due diligence and evicted trespassers under orders in ELC No. 168 of 2015, was the registered proprietor. Applying the settled Giella v Cassman Brown principles and the Mrao definition of a prima facie case, the Court agreed with the learned Judge that the appellant had established no prima facie case; that any loss was compensable in damages; and that the balance of convenience favoured the respondent, who was in possession and developing the property. Independently, the Court held the appellant disentitled to discretionary relief for failing to disclose ELC No. 168 of 2016 and his similar mandatory injunction application therein, an affront to the dignity of the court. The appeal was dismissed with costs, the Court finding no basis to interfere with a sound exercise of discretion.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge misdirected himself in finding that the appellant had not established a prima facie case with a probability of success
  2. 2.Whether the appellant's loss was capable of being adequately compensated by damages
  3. 3.Whether the balance of convenience tilted in favour of the respondent
  4. 4.Whether the appellant's non-disclosure of ELC No. 168 of 2015/2016 disentitled him to the discretionary relief

Key legal issues

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01

Prima facie case for an interlocutory injunction

Holding

The appellant failed to demonstrate a prima facie case with a probability of success against the respondent, the registered proprietor of the suit premises

Reasoning

Applying the Mrao definition, the court agreed with the learned Judge that the appellant, whose claim to ownership was subject of a pending suit (H.C.C.C No. 265 of 1996) and who had registered no interest beyond a long-removed caveat, had not shown an apparently infringed right calling for rebuttal from the registered owner.

p. 3
02

Adequacy of damages as an alternative remedy

Holding

Any loss the appellant might suffer was capable of compensation by damages, so the second Giella principle failed

Reasoning

The court stressed the sequence of the Giella principles: even assuming a prima facie case, an injunction will not issue where the injury is not irreparable or is compensable. The appellant's claim, if any, lay against Kenatco in damages.

p. 3
03

Balance of convenience

Holding

The balance of convenience tilted in favour of the respondent, who was in possession and had commenced development

Reasoning

It was common ground that the appellant was not in possession of the suit premises while the respondent, the registered proprietor, had taken possession and commenced development. That factual posture decisively favoured refusal of the injunction.

p. 3
04

Non-disclosure of material facts in discretionary applications

Holding

The appellant concealed the existence of ELC No. 168 of 2016, including a similar mandatory injunction application, which independently disentitled him to the relief

Reasoning

A litigant seeking discretionary relief must disclose all material facts. The appellant had sought joinder and a mandatory injunction in ELC No. 168 of 2016 on similar grounds yet deposed that no suit existed declaring the respondent owner. Non-disclosure is an affront to the dignity of the court and justifies refusal of relief.

p. 3

Legal principles established

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  • An appellate court will not interfere with a trial judge's exercise of discretion unless the judge misdirected himself and arrived at a wrong decision, or it is manifest that he was clearly wrong and injustice was occasioned
  • On an interlocutory appeal, the court must refrain from making determinations on the substantive issues in dispute to avoid prejudicing the pending suit
  • Even where a prima facie case is established, an injunction will not be granted if the injury is capable of compensation by damages
  • Non-disclosure of material facts warrants refusal of discretionary relief, irrespective of whether the relief would otherwise have been granted

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Martha Karambu Koome
M.K. KoomeJA
Currently serving
majority
On appeal from
Environment and Land Court at Mombasa
E.L.C No. 307 of 2016
Jurisdiction invoked
First appeal to the Court of Appeal against an exercise of discretion of the Environment and Land Court (statutory appeal; no specific constitutional provision stated in the judgment)

Relief refused

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Interlocutory injunction restraining the respondent from developing, demolishing, transferring, sub-dividing, charging or dealing with the suit premises

No prima facie case with probability of success was demonstrated; damages would be an adequate remedy; balance of convenience favoured the respondent; the appellant failed to disclose material facts

p. 3

Costs

The appeal is dismissed with costs (costs to the respondent)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, we find no reason to interfere with the learned Judge's discretion which was sound. The appeal herein lacks merit and is hereby dismissed with costs.
p. 3Final orders - dismissal of appeal
First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.
p. 3Giella principles for interlocutory injunctions
A prima facie case in a civil application includes but is not confined to a 'genuine and arguable case.' It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.
p. 3Definition of a prima facie case
It matters not upon a point of this nature being taken whether the applicant was entitled to or that the Court would have granted relief sought in any event, that is to say, leaving aside the non-disclosure for it is the affront to the dignity and credulity of the Court that is in point.
p. 3Effect of non-disclosure of material facts

Issues in the judgment

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minor

The judgment inconsistently refers to the earlier eviction suit as ELC No. 168 of 2015 and ELC 168 of 2016

minor

Minor typographical inconsistency in the same reference: 'ELC 168 OF 2016' appears in capitals later in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samuel Njoroge (suing on behalf of the Estate of the Late Geoffrey Gikaru Njoroge) v Wanje Holding Limited [2018] KECA 305 (KLR)", Case Analysis (2018). Civil Appeal No. 6 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/305/eng@2018-09-20

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