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Court of AppealDismissedCivil Appeal 227 of 2002

Kenya Commercial Bank Ltd v Jeremiah Matoke & another [2009] KECA 28 (KLR)

Court of Appeal of Kenya
4 December 2009
937 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to disturb a High Court judge's interim orders protecting a land buyer, because the bank showed no error of principle.

What this practically means

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Executive summary

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This short interlocutory appeal from the High Court at Nairobi (Osiemo J) challenged a ruling permitting Kenya Commercial Bank Ltd to exercise its statutory power of sale over L.R. No. 7847/4 while simultaneously allowing the 1st respondent, Jeremiah Matoke, quiet occupation of a 10-acre portion (L.R. No. 7847/7) pending trial. The 1st respondent had contracted in 1990 to buy the 10 acres from the 2nd respondent, taken possession, and obtained a decree for specific performance in Kitale HCCC No 132 of 1997, only to discover the title was charged to the bank, which advertised the whole property for sale in 2002. He sued and obtained interim injunctive relief under Order 39 Rules 1, 2 and 3 of the Civil Procedure Rules. The bank argued ten grounds of appeal, collapsed into one, attacking the Judge's discretion as wrongly exercised. The Court of Appeal (Tunoi, Waki and Onyango Otieno JJA) reiterated that an appellate court will not interfere with a discretionary decision unless it is wrong in principle or perverse on the facts, and found neither flaw. The Court expressly declined to determine whether the 2nd respondent could sell charged land without the appellant's consent, and whether the bank was bound by the Kitale decree, since the main suit remained unheard and such findings would pre-empt the trial Judge. The appeal was dismissed with costs to the 2nd respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court of Appeal should interfere with the learned Judge's exercise of discretion in allowing the bank to proceed with its statutory power of sale while preserving the 1st respondent's occupation of 10 acres pending trial
  2. 2.Whether the learned Judge erred in principle or acted perversely in granting the injunctive reliefs
  3. 3.(Declined to determine) Whether the 2nd respondent, having charged the suit property to the appellant, had any right to sell or dispose of any portion of it without the appellant's consent
  4. 4.(Declined to determine) Whether the appellant, not being a party to Kitale HCCC No 132 of 1997, was bound by orders emanating from that suit

Key legal issues

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01

Appellate interference with judicial discretion in interlocutory injunction matters

Holding

The Court of Appeal will not disturb a discretionary decision unless it is wrong in principle or perverse on the facts; finding none, the Court dismissed the appeal.

Reasoning

The Judge granted interim injunctive relief guided by the Giella v Cassman Brown principles. The appellant attacked the discretion as wrongly exercised but combined ten grounds into one. The Court, examining the material, found no error of principle and no perversity, so the discretion stood and the appeal failed.

p. 2
02

Restraint in deciding merits-dependent issues on interlocutory appeal

Holding

The Court declined to determine whether the 2nd respondent could sell charged land without the appellant's consent, and whether the bank was bound by the Kitale decree, because the main suit was unheard.

Reasoning

Both issues turned on material facts not yet determined at trial. The Court reasoned that deciding them at the interlocutory stage would pre-empt or prejudice the trial Judge's eventual decision. It therefore confined itself to the discretion challenge and left the substantive questions open for trial.

p. 2

Legal principles established

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  • The Court of Appeal will not interfere with the exercise of a trial judge's discretion unless the discretion was exercised wrongly in principle or the judge acted perversely on the facts.
  • An appellate court in an interlocutory appeal should not determine issues that depend on material facts not yet established at trial, so as not to pre-empt or prejudice the trial judge's decision.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the 2nd respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
On appeal from
High Court of Kenya at Nairobi
HCCC No 290 of 2002
Jurisdiction invoked
First appeal to the Court of Appeal against an interlocutory ruling of the High Court (statutory appellate jurisdiction; no specific constitutional or statutory provision cited in the judgment)

Relief refused

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The appellant's request that the Court interfere with the Judge's discretion and set aside the injunctive orders preserving the 1st respondent's occupation of 10 acres

No error of principle or perversity in the exercise of discretion was demonstrated

p. 2

The appellant's attempt to have the Court determine the merits of other grounds, including whether the 2nd respondent could sell charged land without the appellant's consent and whether the bank was bound by the Kitale decree

The main suit remains unheard; determining those issues would pre-empt or prejudice the trial Judge

p. 2

Costs

The appeal was dismissed with costs to the 2nd respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is now well settled that this Court will not interfere with the exercise of a discretion on an application such as that in the instant case unless the exercise was wrong in principle or the Judge acted perversely on the facts.
p. 2Non-interference with judicial discretion
Upon a careful consideration of the material before us we are satisfied that there is no fault of principle exhibited by the learned Judge, nor was the exercise of his discretion perverse.
p. 2Application of the discretion standard to the facts
For the reasons above stated the appeal fails and is dismissed with costs to the 2 nd respondent.
p. 2Final orders and costs

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Commercial Bank Ltd v Jeremiah Matoke & another [2009] KECA 28 (KLR)", Case Analysis (2009). Civil Appeal 227 of 2002. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/28/eng@2009-12-04

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