Magondu v Koech & 3 others
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the trial Judge properly applied the Giella principles to the prayers sought
The trial Judge considered the Giella principles but failed to properly apply them to the prayers sought; the order granted had no temporal limits and the latter part was unsupported by the evidence, as the 1st Respondent did not plead possession.
The Court found that although the trial Judge recited the correct principles for granting temporary injunctions, he failed to apply them to the actual prayers. The order as granted had no temporal limits, and the restraint on entering, constructing, cultivating and remaining on the land was unsupported because the 1st Respondent's supporting affidavit did not plead possession. The result was a final, prohibitory and mandatory injunction at an interlocutory stage without legal or factual basis.
The appellate court's power to vary the trial court's decision
Under Rule 31 of the Court of Appeal Rules 2010, the Court has power to vary the decision of the trial court, and exercised it by setting aside the injunction and substituting preservation of status quo as at 9th July 2018.
Having found the discretion was exercised wrongly and injudiciously, the Court invoked its power under Rule 31 of the Court of Appeal Rules 2010 to vary the trial court's decision. Rather than dismissing the application outright, it substituted an order preserving the status quo as at the date of the impugned ruling, pending the hearing and determination of the underlying suit.
Legal principles established
#- An appellate court will interfere with an exercise of judicial discretion only where it is shown the discretion was exercised injudiciously or on wrong principles.
- On a first appeal, the Court of Appeal is by way of retrial and must reconsider and evaluate the evidence itself, though it has neither seen nor heard the witnesses.
- An interlocutory prohibitory injunction must be limited in time and supported by the evidence pleaded; a court cannot grant an order with final or mandatory effect at the interlocutory stage without legal or factual basis.
Court orders
#- 1.Set aside the orders granted on 9th July 2018 by the ELC in Mombasa ELC Civil Suit No. 131 of 2017
- 2.In place of the set-aside orders, order that the status quo obtaining as at 9th July 2018 with respect to the property known as Kwale/Shimoni/168 be preserved, pending the hearing and determination of the 1st Respondent's suit in Mombasa ELC Civil Suit No. 131 of 2017
- 3.The costs of the 1st Respondent's application dated 20th June 2018 filed in the ELC shall abide the outcome of the suit in the ELC
- 4.No order as to the costs of the appeal
- On appeal from
- Environment and Land Court at Mombasa
- Civil Suit No. 131 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal Rules, including Rule 31 power to vary the decision of the trial court
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.
- Adiema & another v Shisikani[2022] KEELC 4928 (KLR)27 Sept 2022followed
Cite this brief
#Cite this brief
Caselaw, "Magondu v Koech & 3 others", Case Analysis (2022). Civil Appeal 140 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/642/eng@2022-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.