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Court of AppealPartially AllowedCivil Appeal 140 of 2019· [2022] KECA 642 (KLR)

Magondu v Koech & 3 others

Court of Appeal
13 May 2022
2,219 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Mombasa against a ruling of the Environment and Land Court (Yano J) dated 9th July 2018, which granted the 1st Respondent a temporary injunction in terms of prayer 3 of his Notice of Motion dated 20th June 2017 in a dispute over ownership of parcel Kwale/Shimoni/168. The Appellant, the registered owner, contended that the order was ambiguous, mandatory in effect, and would evict her from the suit property at an interlocutory stage. The Court of Appeal reiterated its role on a first appeal as a retrial and the narrow grounds for interfering with judicial discretion. It found that although the trial Judge recited the correct Giella principles, he failed to apply them to the prayers sought: the order had no temporal limits, and the restraint on entering, constructing and remaining on the land was unsupported by evidence, as the 1st Respondent never pleaded possession. The Court held the trial Judge had exercised his discretion wrongly and injudiciously by granting, in effect, a final prohibitory and mandatory injunction without legal or factual basis. Invoking Rule 31 of the Court of Appeal Rules 2010, the Court set aside the orders of 9th July 2018 and substituted an order preserving the status quo as at 9th July 2018 pending the hearing and determination of the underlying suit. Costs of the application in the ELC were to abide the outcome of the suit, and no order was made as to the costs of the appeal.

Key legal issues

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01

Whether the trial Judge properly applied the Giella principles to the prayers sought

Holding

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.

Reasoning

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.

p. 4
02

The appellate court's power to vary the trial court's decision

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.Set aside the orders granted on 9th July 2018 by the ELC in Mombasa ELC Civil Suit No. 131 of 2017
  2. 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. 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. 4.No order as to the costs of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 31

Cases cited (7)

  • Selle & Another vs Associated Motor Boat Co. Ltd. & Others
    (1968) EA 123

    The role of a first appellate court - appeal by way of retrial, reconsidering and evaluating evidence and drawing its own conclusions.

  • Jabane vs Olenja
    [1986] KLR 661

    Appellate court not bound by trial judge's findings of fact not based on evidence or made on wrong principles of law.

  • Mbogo & Another vs Shah
    (1968) E.A. 93

    Principles for appellate interference with judicial discretion - only where the judge misdirected himself and was clearly wrong, resulting in injustice.

  • Kenya Electricity Transmission Company Limited vs Agnes Ongadi
    [2018] eKLR

    Cited by the appellant - the duty of the court at the interlocutory stage is to assess the strength of each party's case without determining the merits.

  • Giella vs Cassman Brown & Co., Ltd.
    [1973] E.A. 358

    Principles for granting interlocutory injunctions - prima facie case, irreparable injury, balance of convenience.

  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 others
    [2003] eKLR

    Definition of a prima facie case in injunction applications.

  • Nguruman Limited vs Jan Bonde Nielsen & 2 others
    CA No 77 of 2012

    Injunction principles - sequential application of the Giella tests.

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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.