Hassan Swaleh Mohsin & 2 others v Abdul Karuri & 3 others [2021] KEELC 183 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to grant a temporary injunction pending appeal after dismissing the substantive suit
The court is seized of jurisdiction to grant an injunction pending an intended appeal pursuant to Order 42 Rule 6(6) of the Civil Procedure Rules, 2010.
The court relied on the express wording of Order 42 Rule 6(6), which confers power on the High Court in its appellate jurisdiction to grant a temporary injunction where the procedure for instituting the appeal has been complied with. The court traced the rule to the Court of Appeal's decision in Eustace Kagau Kangerwe, which explained that the Western College bar on post-judgment injunctions was overruled by Madhupaper International, while the principle requiring amendment of the rules before such power existed was resolved by the 2010 rules.
Conditions for granting a temporary injunction pending appeal
The grant is discretionary, not automatic; the applicant must establish pre-requisite conditions including a prima facie appeal, sufficient cause, chances of success and apprehension of irreparable loss.
Order 42 Rule 6(6) confers the power but does not enumerate conditions. Reading Madhupaper International, the court held that an injunction pending appeal does not issue as of right and would be refused where the appeal is frivolous or where greater hardship would be inflicted. The grant is left to judicial discretion exercised in light of various circumstances, including the appeal's prospects and irreparable loss.
Whether the Plaintiffs fulfilled the conditions
The Plaintiffs failed to establish sufficient cause, a prima facie appeal or exceptional circumstances to justify restraining the registered owners from dealing with their property.
The Plaintiffs conceded that the suit premises were destroyed by fire in 2015, that they vacated, and that the Defendants demolished the remnants and took away building materials. They therefore had been forced out and could not show a prima facie case or sufficient cause. The suit property belongs to and is registered in the names of the Defendants; restraining a registered proprietor requires special, peculiar and/or exceptional circumstances, per Nguruman, which the Plaintiffs did not avail.
Legal principles established
#- The High Court (Environment and Land Court) has jurisdiction under Order 42 Rule 6(6) of the Civil Procedure Rules to grant a temporary injunction pending an intended appeal even after dismissing a suit that included a claim for permanent injunction.
- The grant of a temporary injunction pending appeal is discretionary and not automatic; the applicant must establish conditions such as chances of success of the appeal, a prima facie case, sufficient cause and apprehension of irreparable loss.
- It is a serious thing to restrain a registered proprietor of property over what is undeniably his; the claimant must show special, peculiar and/or exceptional circumstances before such an order can issue.
- The absence of opposition to an application does not relieve the applicant of the burden of establishing the conditions for the relief sought.
Court orders
#- 1.The Plaintiffs' application dated the 15th of November 2021 is dismissed
- 2.There shall be no orders as to costs
- Jurisdiction invoked
- Order 42 Rule 6(6) of the Civil Procedure Rules, 2010 (with reference to Article 48 of the Constitution, 2010)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hassan Swaleh Mohsin & 2 others v Abdul Karuri & 3 others [2021] KEELC 183 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/183/eng@2021-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.