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Case Brief · caselaw.co.ke
Court of AppealDismissedNot stated in the judgment· [2021] KECA 143 (KLR)

Patrick Kabundu & 2 others v Mombasa County Government & 3 others

Court of Appeal
19 November 2021
RNR. N. NambuyeHOHannah OkwenguFSF. Sichale
2,054 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that serious allegations alone cannot win injunctions — you must show actual evidence of a rights violation, not just suspicions.

What this practically means

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Executive summary

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This is a Court of Appeal judgment dismissing an appeal against a ruling of the High Court (Ogola J.) delivered on 9th May 2019, which had refused a notice of motion dated 11th July 2018 seeking temporary injunction and conservatory orders. The motion, brought under Articles 3, 22, 23, 159(2), 165 and 258 of the Constitution in a petition challenging the Mombasa County Government's operation of the Municipal Court, sought to restrain the county from collecting revenue from court fines, fees and bail, and to direct such revenues to Judiciary accounts and the consolidated fund pending trial. The appellants argued that municipal courts ceased to exist upon repeal of the Local Government Act, that revenue collection from courts is a national government function, and that the county's actions violated Articles 123, 159(2)(c), 162(1) and 258(1). The respondents countered that the appellants had produced no evidence of diversion of funds, the monies being remitted to the Consolidated Fund. The Court of Appeal framed the single main issue as whether the appellants satisfied the conditions for conservatory and interlocutory orders. Applying the Uhuru Secondary School principles and the Mrao test for interfering with discretionary decisions, the Court held the judge properly exercised his discretion: the appellants established no prima facie case with a probability of success, made only general allegations unsupported by prima facie evidence, demonstrated no violated or threatened rights, and showed no injury. The appeal was dismissed with costs.

Key legal issues

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01

Whether the High Court properly exercised its discretion in refusing conservatory and interlocutory orders

Holding

The High Court judge properly exercised his discretion; the appellants failed to demonstrate a prima facie case or injury, and the Court of Appeal found no basis to interfere.

Reasoning

The Court applied the established principles for conservatory orders under Article 23 as set out in Board of Management of Uhuru Secondary School, and the Mrao framework for interfering with discretionary decisions. The judge had correctly confined himself to the material before him, found the allegations of diversion of court revenue unproven, and concluded there was no prima facie case or demonstrated injury. The Court found no misdirection on law, misapprehension of fact, or wrong result.

p. 5
02

Whether the appellants' allegations of diversion of court revenue sufficed to warrant conservatory orders

Holding

General allegations without prima facie evidence do not establish a prima facie case; payments into a county revenue account, without evidence of diversion, are insufficient.

Reasoning

The Court endorsed the High Court's finding that the appellants' allegations, though serious and akin to fraud if proved, required demonstration that monies collected did not end up in the Consolidated Fund. All the appellants showed was that court fees, fines and bail were paid into a county revenue account rather than a Judiciary account, which, without evidence of diversion of funds, could not justify an injunction.

p. 5

Legal principles established

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  • An appellate court may only interfere with the exercise of judicial discretion if the judge misdirected himself on law, misapprehended the facts, took into account or failed to take into account relevant considerations, or the decision was plainly wrong
  • A party seeking an interlocutory injunction or conservatory order must establish a prima facie case with a probability of success

Court orders

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  1. 1.Appeal dismissed with costs
On appeal from
High Court
Not stated in the judgment
Jurisdiction invoked
First appeal to the Court of Appeal against an interlocutory ruling of the High Court in a constitutional petition (provision not stated 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, "Patrick Kabundu & 2 others v Mombasa County Government & 3 others", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/143/eng@2021-11-19

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