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Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Application No Nai 127 of 1986· [1998] KECA 134 (KLR)

Maheschandra Shamjibhai Gheewala v 1. Aruna B. Gheewala

Court of Appeal of Kenya
21 October 1986
648 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that disputed property is usually preserved by injunction pending appeal, so a win on appeal isn't rendered meaningless.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Nyarangi, Platt and Gachuhi, JJA) on a single-judge-referred application under rule 5(2)(b) of the Court of Appeal Rules, brought in an intended appeal against an order of Shields, J in Civil Case 1395 of 1986 dated July 23, 1986. The dispute concerned the ownership of shares, with the plaintiff seeking specific performance of a disputed sale. The court held that the affidavits disclosed clear issues of fact and law, that the appeal could not be said to be obviously without merit or frivolous, and that in such circumstances the usual rule is to grant an injunction preserving the property pending determination of the dispute. It found no special circumstances displacing that rule, distinguished Madhupaper International Limited v Paper Kerb as turning on its peculiar facts, and aligned the application with the established practice in M M Butt v The Rent Restriction Tribunal and Erinford Properties Ltd v Cheshire County Council, expressly stating the case was not governed by Giella v Cassman Brown. The court allowed the application and granted the injunction, with costs of the application to the applicant. In a further order dated October 21, 1986, it required the applicant to give the usual undertaking as to damages in writing, directed that the appeal be filed within 21 days, that an early hearing date be allocated, and gave liberty to apply. The ruling binds subordinate courts on the purpose and usual incidence of rule 5(2)(b) injunctions.

Key legal issues

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01

Test for grant of an injunction pending appeal under rule 5(2)(b)

Holding

Where the appeal is not frivolous and there is a serious dispute as to ownership of the subject matter, the usual rule is to grant an injunction preserving the property pending determination of the dispute, absent special circumstances.

Reasoning

The court found the affidavits disclosed clear issues of fact and law, including a serious dispute over ownership of the shares, and the plaintiff sought specific performance of the disputed sale. It held the appeal was not obviously frivolous and that no special circumstances justified departing from the established practice of preserving the subject matter pending appeal, distinguishing Madhupaper as turning on its peculiar facts.

p. 2
02

Purpose of rule 5(2)(b) applications

Holding

The purpose is to preserve the subject matter in dispute so that the rights of an appellant are safeguarded and a successful appeal is not rendered nugatory.

Reasoning

The court aligned the application with the established practice in M M Butt v The Rent Restriction Tribunal and Erinford Properties Ltd v Cheshire County Council, and expressly stated the application was not governed by the Giella v Cassman Brown principles applicable to interlocutory injunctions at first instance.

p. 2

Legal principles established

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  • The purpose of a rule 5(2)(b) application is preservation of the subject matter so that a successful appeal is not rendered nugatory; where there is a serious dispute as to ownership of the subject matter, the usual rule is that an injunction is granted to preserve the property pending determination of the dispute.

Court orders

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  1. 1.The application is allowed and an injunction is granted to preserve the subject matter pending the determination of the dispute
  2. 2.The applicant shall give the usual undertaking as to damages in writing
  3. 3.The appeal shall be filed within the next 21 days
  4. 4.The earliest possible date for hearing the action shall be allocated
  5. 5.Liberty to apply
  6. 6.Costs of the application to the applicant
On appeal from
High Court of Kenya at Nairobi
Civil Case 1395 of 1986
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (injunction pending intended appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Maheschandra Shamjibhai Gheewala v 1. Aruna B. Gheewala", Case Analysis (1986). Civil Application No Nai 127 of 1986. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/134/eng@1998-06-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.