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Court of AppealDismissedCivil Appeal No 54 of 2016· [2020] KECA 729 (KLR)

Parkside Medical Centre Limited v Nairobi City County

Court of Appeal
24 April 2020
WKW. KaranjaFSF. SichaleJMJ. Mohammed
3,397 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed it will rarely overturn a judge's refusal of an interim injunction, especially where the applicant hasn't proven a strong case and money can compensate the loss.

What this practically means

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Executive summary

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The Court of Appeal dismissed an appeal by Parkside Medical Centre Limited against a ruling of the High Court (Onguto, J.) refusing a temporary injunction against Nairobi City County. The dispute arose when County employees served an enforcement notice under Section 38 of the Physical Planning Act requiring cessation of construction and demolition of a perimeter wall on the appellant's Lavington property, then demolished the wall before the notice period expired. The appellant sued in the ELC seeking injunctions and damages, and sought interlocutory injunctions, including staying its employee's City Court criminal case. The High Court dismissed the application, finding no prima facie case, no irreparable harm, and no inadequacy of damages. On appeal, counsel for the appellant argued that construction had commenced within the approval period, that a prima facie case existed, that Section 38 did not oust the High Court's jurisdiction, and that the respondent acted prematurely. The respondent did not appear despite service. The appellate court, sitting as a full bench, confined itself to whether the trial judge erred in the exercise of discretion. Reiterating the limited grounds for appellate interference with discretionary decisions, and applying the Mrao definition of a prima facie case, the court found no error in the judge's conclusion. It observed that the approvals did not cover the perimeter wall, that damages would be an adequate remedy for purely monetary loss (in obiter), and that the lapse of time since the demolition meant an injunction would serve no useful purpose. The appeal was dismissed with costs, and the main suit in the ELC was directed to be heard on a priority basis.

Key legal issues

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01

Interference with exercise of judicial discretion on interlocutory injunctions

Holding

The appellate court will not disturb the trial judge's discretionary refusal of an injunction absent one of the established grounds of misdirection or plain wrongness

Reasoning

The court reiterated that an appellate court will not interfere with the exercise of discretion by the trial court even if it would have reached a different conclusion, citing Lucy Wangui Gachara and United India Insurance. The grounds for interference are misdirection in law, misapprehension of facts, taking into account irrelevant considerations, failing to take relevant considerations into account, or a plainly wrong decision. Finding no such error, the court declined to disturb the ruling.

p. 2
02

Prima facie case for temporary injunction

Holding

The appellant failed to establish a prima facie case with a probability of success; the trial court therefore rightly declined the injunction without considering the other limbs

Reasoning

Applying the Mrao definition, the court examined the record and was not persuaded the judge erred in finding no prima facie case. The appellant's approvals did not cover the perimeter wall, the enforcement notice specifically targeted that wall, and given the passage of time since the demolition no useful purpose would be served by an injunction. Damages were also held, obiter, to be an adequate remedy since the loss was purely monetary.

p. 4
03

Demolition before expiry of enforcement notice period

Holding

It is not disputed that the respondent demolished the perimeter wall before the seven-day notice period in the enforcement notice had expired

Reasoning

The enforcement notice dated 5th May 2014 gave the appellant until 12th May 2014 to take corrective action. The court recorded that the demolition occurred before the notice period expired. However, this did not avail the appellant at the interlocutory stage because no prima facie case was established and the loss was compensable in damages.

p. 4

Legal principles established

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  • The Court of Appeal will not interfere with a discretionary decision of the trial court unless misdirection in law, misapprehension of facts, consideration of irrelevant or omission of relevant matters, or plain wrongness is established
  • A prima facie case in a civil application is more than an arguable case; the evidence must show an infringement of a right and a probability of success upon trial
  • Where no prima facie case is established, the court need not consider the remaining Nguruman limbs

Court orders

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  1. 1.The appeal is dismissed with costs
  2. 2.The suit in the ELC shall be heard on priority basis
On appeal from
High Court of Kenya (Environment & Land Division) at Nairobi
ELC Case No 605 of 2014
Jurisdiction invoked
First appeal to the Court of Appeal against the exercise of discretion by the High Court in an interlocutory application

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, "Parkside Medical Centre Limited v Nairobi City County", Case Analysis (2020). Civil Appeal No 54 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/729/eng@2020-04-24

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