Thomas Mumo Maingey (Suing on his own behalf and on behalf of the Franciscans of Our Lady of Good Counsel Sisters Registered Trustees) v Sarah Nyiva Hillman & 3 others [2018] KECA 645 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that judges deciding temporary injunctions must not settle factual disputes—like whether a road is public—but should preserve the status quo until trial.
What this practically means
#Executive summary
#Key legal issues
#Principles governing interference with the exercise of judicial discretion by a lower court
The Court of Appeal will not interfere with a lower court's exercise of discretion unless the judge misdirected himself on law, misapprehended the facts, took account of irrelevant considerations, failed to take account of relevant considerations, or the decision is plainly wrong.
The Court applied the long-standing appellate standard from Mbogo v Shah and Carl Ronning. Because the ruling below was the product of judicial discretion in deciding two competing interlocutory applications, the appeal turned on whether the Judge was within that standard. Having found that the Judge resolved a triable issue on untested affidavit evidence, the Court concluded the decision was plainly wrong and interfered.
Role of the court at the interlocutory stage on contested affidavit evidence
It is no part of the court's function on an interlocutory injunction application to resolve conflicts of affidavit evidence or to decide difficult questions of law; whether 39 Quarry Road is a public or private road was a matter for trial.
The Court cited Lord Diplock in American Cyanamid v Ethicon and Mbuthia v Jimba Credit Finance Corporation. Both parties had presented substantial affidavit material on the public/private character of the road. That contested material could not ground a determination of the relative strengths of the parties' cases under the first two Giella principles, so the Judge's final determination on the question was an error justifying appellate interference.
Application of the Giella v Cassman Brown principles for temporary injunctions
An injunction is an equitable, discretionary remedy; the applicant must show a prima facie case with reasonable prospect of success, irreparable harm not compensable in damages, and failing which the balance of convenience. On this case the balance of convenience favoured the appellants and a temporary injunction was warranted.
The Court restated the Giella test as elaborated in Nguruman Limited v Jan Bonde Nielsen: the three conditions are sequential and all must be met. Since the first two conditions could not be resolved on untested affidavits, the Judge should have moved to the balance of convenience. As it was the respondents who precipitated the dispute by restricting use of the road, the balance favoured maintaining the status quo pending trial.
Legal principles established
#- An appellate court will not interfere with the exercise of discretion by a lower court unless satisfied that the court misdirected itself on law, misapprehended the facts, took into account considerations it should not have, failed to take into account relevant considerations, or the decision is plainly wrong.
- In an interlocutory injunction application the court must not resolve conflicts of affidavit evidence or decide difficult questions of law; whether a right of way exists over a road is a matter for the trial court.
- The correct approach to an interlocutory injunction application is to weigh the relative strength of each side's propositions, not to decide issues of fact.
- Where the relative strength of the parties' cases rests on contested affidavit evidence, the court should determine the application on the balance of convenience, which favours holding things where they are.
Court orders
#- 1.The ruling and orders of the Environment and Land Court dated 13th July 2017 are set aside and substituted with an order allowing prayer 3 of the appellants' notice of motion dated 9th April 2015
- 2.The appellants' temporary injunction application dated 9th April 2015 is allowed, restraining the 1st to 3rd respondents from restricting the use of 39 Quarry Road pending the hearing and determination of the suit
- 3.The application by the 1st to 3rd respondents dated 19th June 2016 is dismissed
- 4.Each party shall bear its own costs of the applications in the High Court and of this appeal
- On appeal from
- Environment and Land Court at Machakos
- ELC Cause No. 113 of 2015
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the Environment and Land Court (Constitution of Kenya, 2010, Article 164; Court of Appeal Act)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gikunda v Bogani Gardens Management Company Ltd[2022] KEELC 15547 (KLR)20 Dec 2022
Cite this brief
#Cite this brief
Caselaw, "Thomas Mumo Maingey (Suing on his own behalf and on behalf of the Franciscans of Our Lady of Good Counsel Sisters Registered Trustees) v Sarah Nyiva Hillman & 3 others [2018] KECA 645 (KLR)", Case Analysis (2018). Civil Appeal No. 323 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/645/eng@2018-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.