Kutima Investments Limited v Muthoni Kihara & 1 other

The High Court and the Court of Appeal have concurrent jurisdiction to grant injunctions pending appeal. Here the High Court exercised that jurisdiction after an inter partes hearing and granted the injunction, the order remaining in force until final determination of the intended appeal. The applicant's rights were thereby safeguarded, and a further order of this Court would add nothing, since courts should not act in futility. The purpose of the principle governing concurrent proceedings is to avoid conflicting decisions on the same issues, so insisting on hearing the motion would abuse the Court's process.

The applicant relied on Madhupaper for a right to approach both courts for injunctions. The Court held the case says no such thing: its quoted passage explains that it is preferable for the High Court to deal with such an application first, because the appellate court would then have the advantage of knowing what the judge made of it, and it directs High Court judges to take note of the concurrent jurisdiction. Madhupaper also adopted the Erinford principle that a party's appeal, if successful, should not be rendered nugatory.

Restating Otieno v Ougo (No 2), the Court affirmed that an injunction pending appeal safeguards the appellant's rights and prevents the appeal, if successful, from being nugatory. The High Court had granted the injunction on the Erinford principle propounded by Megarry J and cited with approval in Madhupaper. With that order in place, the applicant's rights were safeguarded whether or not this Court added further orders for the same purpose, leaving no residual purpose for the appellate motion.

The applicant filed the High Court application on 9th May 2005, after filing this motion on 5th May 2005, explaining that the Court of Appeal could not hear the motion on a priority basis. Although the later motion should ordinarily have been stayed to await a decision on the earlier one, the Court held that this procedural irregularity did not invalidate the High Court's order, which was made after an inter partes hearing. Whether the respondents' challenge to that order would succeed was not a matter the Court could determine at that stage.