Richard Twigs Nyaga Ndwiga (Suing as the Deputy for Property and affairs for David Ndwiga v Mwaka Ndungu Kiruu & another [2019] KEELC 256 (KLR)
The bottom line
#Kenya's High Court froze a disputed Mombasa plot pending appeal, confirming appellants can still get injunctions even after losing at the lower court.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant met the Giella v Cassman Brown threshold for an interlocutory injunction pending appeal
The court found the threshold met: the applicant established a prima facie case with probability of success, supported by the 1st Respondent as original registered proprietor, and would suffer irreparable loss not quantifiable in damages if the property were sold or developed.
The applicant claimed the property was purchased by David Ndwiga from the 1st Respondent in 2002; the 1st Respondent supported the applicant and disowned the sale to the 2nd Respondent as fraudulent. The 2nd Respondent claimed to be an innocent purchaser for value. The court held that safeguarding the status quo was fair at the interlocutory stage to prevent the appeal being rendered nugatory.
Whether the court exercising appellate jurisdiction can grant a temporary injunction
Yes. Order 42 Rule 6(6) of the Civil Procedure Rules confers power on the High Court to grant a temporary injunction in the exercise of its appellate jurisdiction, provided the procedure for instituting the appeal has been complied with.
The court relied on Order 42 Rule 6(6) and on Order 40 Rules 1 and 2 of the Civil Procedure Rules, and on the inherent power under Section 3A of the Civil Procedure Act to make orders necessary for the ends of justice and to prevent abuse of the court process.
Legal principles established
#- The High Court, in the exercise of its appellate jurisdiction, has power under Order 42 Rule 6(6) of the Civil Procedure Rules to grant a temporary injunction provided the procedure for instituting the appeal has been complied with.
- The Giella v Cassman Brown principles govern applications for temporary injunction: prima facie case with probability of success, irreparable damage not compensable by damages, and balance of convenience if in doubt.
Court orders
#- 1.The Notice of Motion dated 3rd July 2018 is allowed in terms of prayer 3 thereof (temporary injunction restraining the Respondents from developing, selling or in any way alienating Plot No. Mombasa/Mwembelegeza/1320 pending the hearing and determination of the application and the appeal)
- 2.Costs of the application to be borne by the 2nd Respondent
- On appeal from
- Subordinate court (not named in the judgment)
- Suit in which plaint was filed on 16/2/18 (number not stated)
- Jurisdiction invoked
- Order 42 Rule 6(6) of the Civil Procedure Rules - power to grant temporary injunction in the exercise of appellate jurisdiction, together with Order 40 Rules 1, 2, 3 and 4 and Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Twigs Nyaga Ndwiga (Suing as the Deputy for Property and affairs for David Ndwiga v Mwaka Ndungu Kiruu & another [2019] KEELC 256 (KLR)", Case Analysis (2019). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/256/eng@2019-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.