Delphin Kanuu Kamau v Fina Bank Limited [2020] KECA 619 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a bank's right to auction a charged property because the guarantor denied signing documents without evidence and withheld key facts from the court.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court of Appeal should interfere with the High Court's discretionary refusal of an interlocutory injunction
No. The discretion of the first-instance court must not be lightly interfered with; interference lies only on the established grounds of misdirection or patent wrongness, and the onus is on the party seeking interference.
The Court recalled that the grant or denial of an injunction lies in the discretion of the first-instance court, so the appellate approach is deferential, permitting interference only where the Judge misdirected himself, misapprehended the law or misconstrued the facts, considered irrelevant matters or ignored relevant ones, or was patently wrong. A different conclusion on the same material is not a basis for reversal. The appellant failed to demonstrate any such fault by Wendoh, J.
Whether the learned Judge erred in drawing conclusions of fact on disputed affidavits at the interlocutory stage
No. While a court on an interlocutory application must be careful not to make firm conclusions that embarrass the trial court, judges at every stage may draw inferences and choose between competing versions of disputed facts.
The Court held that adversarial litigation obliges a judge, even interlocutorily, to decide which of two competing accounts is more believable. The appellant's bare denial of execution of the charge and guarantee could not dislodge the signed documents; the absence of any police report against the mother, and the failure to join her, cast doubt on the bona fides of the fraud allegations. The Judge's adverse view of the appellant's candour had a reasonable basis.
Whether the learned Judge wrongly formulated the prima facie case test as requiring 'high chances of success'
The Judge's formulation was imprecise, but the error was immaterial because the correct threshold is only a probability of success, which the appellant did not meet; and once the prima facie case fails, the remaining Giella limbs need not be considered.
Following Nguruman, the Court reiterated that the applicant needs only show a probability of success, not high chances. The Judge's misstatement did not vitiate the outcome since the appellant floundered on the first hurdle; the sequential approach in Nguruman means damages and balance of convenience fall away. The Court nonetheless affirmed the refusal of the injunction on equitable grounds of non-disclosure and want of candour.
Legal principles established
#- On an interlocutory appeal against the grant or refusal of an injunction, the Court of Appeal is deferential and interferes only where the Judge misdirected himself, misapprehended the law or facts, took into account irrelevant matters or failed to consider relevant ones, or was patently wrong.
- An applicant for an injunction need only demonstrate a probability, not a high likelihood, of success; and once an applicant fails on the first hurdle of a prima facie case, the court need not consider adequacy of damages or balance of convenience.
- An interlocutory court must avoid firm conclusions on disputed matters that would embarrass the trial court, but it remains the business of judges at every stage to draw inferences and arrive at conclusions over disputed facts.
- Injunctions are an equitable remedy; a party seeking one must do equity and be honest and forthright, and mere knee-jerk denials of obvious facts do not endear a litigant to a court of equity.
Court orders
#- 1.The appeal is dismissed with costs
- On appeal from
- High Court of Kenya at Nakuru
- HCCC No. 227 of 2011
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Constitution and the Appellate Jurisdiction Act (interlocutory appeal against dismissal of an injunction application)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kitelo & 2 others v Tum & 4 others (Environment and Planning Civil Case E002 of 2025) [2025] KEELC 4994 (KLR)[2025] KEELC 4994 (KLR)2 Jul 2025
- Estate of Amir Suleiman (Suing through its Executor Roshan BA Suleiman) v County Government of Narok (Land Case E027 of 2024) [2025] KEELC 4296 (KLR)[2025] KEELC 4296 (KLR)5 Jun 2025
Cite this brief
#Cite this brief
Caselaw, "Delphin Kanuu Kamau v Fina Bank Limited [2020] KECA 619 (KLR)", Case Analysis (2020). Civil Appeal No. 356 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/619/eng@2020-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.