The Aga Khan Foundation v Nurbanu Madatali Shivji Jamal [2019] KEELC 796 (KLR)
The bottom line
#Kenya's High Court upheld an injunction protecting land meant for a mosque, ruling that religious attachment to land counts as harm money cannot fix.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court properly granted the interlocutory injunction
The appeal was dismissed; the injunction was properly granted as the respondent showed a prima facie case, irreparable harm and balance of convenience
The court applied the Giella v Cassman Brown principles. It found the appellant's narrative had shifted regarding ownership of the suit land, giving the respondent a prima facie case. The religious attachment to the land (Article 32 rights) amounted to irreparable harm, and the balance of convenience tilted in favour of the respondent because lifting the orders risked a higher injustice. The trial court's discretion was therefore exercised judiciously.
Duty of the first appellate court
The court is obliged to re-evaluate the evidence afresh while making due allowance for not having seen or heard the witnesses
Relying on Selle v Associated Motor Boat Co and Sergeant v Patel, the court held that it must reconsider the evidence, evaluate it itself and draw its own conclusions, while not interfering with the trial court's discretionary grant of an interim injunction unless that discretion was not exercised judicially.
Legal principles established
#- A first appellate court must re-evaluate, reassess and reanalyse the evidence and come to its own conclusions while making allowance for not having seen or heard the witnesses
- An appellate court will not interfere with the grant of an interim injunction unless the discretion was not exercised judicially
- Religious attachment to land may constitute irreparable harm not compensable by damages
Court orders
#- 1.The appeal (memorandum of Appeal dated 16th October 2008) is disallowed; the Ruling and Order of the trial court delivered on 24th June 2008 is upheld in its entirety
- 2.The suit Homa-Bay SRMCC No. 7 of 2006 to be heard on priority and marathon basis; mentioned before the Senior Principal Magistrate, Homa-Bay Law Courts for urgent directions on 7th November 2019 and the original file returned
- 3.Costs of the appeal to be borne by the Appellant
- On appeal from
- Senior Principal Magistrate's Court, Homa-Bay
- Homa-Bay SRMCC No. 7 of 2006
- Jurisdiction invoked
- First appellate jurisdiction over the trial court's ruling (interlocutory injunction appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Aga Khan Foundation v Nurbanu Madatali Shivji Jamal [2019] KEELC 796 (KLR)", Case Analysis (2019). Appeal from Homa-Bay SRMCC No. 7 of 2006 (Memorandum of Appeal dated 16th October 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/796/eng@2019-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.