Ndungu v Palma Plus Enterprises & another (Environment and Land Appeal 1 of 2023) [2024] KEELC 4515 (KLR)
The bottom line
#A Mombasa court refused to stop an auction of a businessman's goods, ruling he failed to prove his appeal had a strong chance of success.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant met the threshold for a temporary injunction pending appeal
The application failed on all three Giella limbs: no prima facie/arguable appeal, no demonstrated irreparable injury, and no balance of convenience in his favour
The court noted the applicant attached only the lower-court application without its annexures, so the court could not verify the evidence upon which the magistrate premised her decision, and he could not show an arguable appeal. He produced no proof of the alleged grant of the premises by his uncle nor evidence of actual, substantial and demonstrable injury. Since neither party produced ownership documents, he failed to show the balance of convenience favoured granting the injunction.
Costs of the application
Costs follow the event; the unsuccessful Applicant to bear costs payable to the 1st Respondent
Section 27(1) of the Civil Procedure Act provides that costs follow the event, meaning the result of the legal action. Since the Appellant's application was unsuccessful, the 1st Respondent was entitled to the costs of the application and appeal.
Legal principles established
#- The High Court/ELC in the exercise of its appellate jurisdiction may grant a temporary injunction pending appeal under Order 42 Rule 6(6), guided by the Venture Capital principles and the Giella v Cassman Brown test
- Irreparable injury is a question of fact that the applicant must establish through evidence; speculative injury will not suffice
- Costs follow the event under Section 27(1) of the Civil Procedure Act
Court orders
#- 1.The Notice of Motion dated 30th August 2023 is found to be devoid of merit and is dismissed
- 2.The matter proceeds with execution accordingly as ordered by the trial court
- 3.Costs to be borne by the Appellant/Applicant and awarded to the 1st Respondent
- On appeal from
- Magistrate's Court (Mombasa)
- ELC (Mombasa) CMCC E267 of 2023 - Richard Nguru Ndunyu v Palma Plus Enterprises and Five Eleven Auctioneers
- Jurisdiction invoked
- Order 42 Rule 6 (6) of the Civil Procedure Rules, 2010 - appellate jurisdiction to grant a temporary injunction pending appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndungu v Palma Plus Enterprises & another (Environment and Land Appeal 1 of 2023) [2024] KEELC 4515 (KLR)", Case Analysis (2024). HCCA No. E188 of 2023 (arising from ELC (Mombasa) CMCC E267 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4515/eng@2024-03-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.