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Court of AppealDismissedCivil Appli 146 of 2008 (UR 93/08)

Stephen Kipkebut t/a Riverside Lodge and Rooms v Naftali Ogola [2009] KECA 448 (KLR)

Court of Appeal of Kenya
23 October 2009
SBS.E.O. BosirePWP.N. WakiAVAlnashir Visram
2,805 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to hand a landlord possession of his property before trial, confirming that temporary mandatory injunctions are granted only in unusually strong cases.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi on an application under rule 5(2)(b) of the Court of Appeal Rules by Stephen Kipkebut, seeking a stay of further proceedings and of the orders of Ang'awa, J. of 18 June 2008, and a temporary mandatory injunction compelling the respondent to give vacant possession of LR No. 209/14318 along Jogoo Road, Nairobi, pending an intended appeal against the High Court's dismissal of his interlocutory application. Counsel for the applicant abandoned the stay prayers and pressed only the injunction, arguing that the intended appeal was arguable and that the continuing erosion of the 99-year lease and the applicant's inability to develop the property would render any successful appeal nugatory. The respondent opposed, contending the Judge had properly exercised her discretion. The Court restated the twin rule 5(2)(b) principles - arguability and the nugatory aspect - both of which must be satisfied. It reviewed the principles governing temporary mandatory injunctions, drawing on Shepherd Homes Ltd v Sandham, East African Fine Spinners v Bedi Investments, Kenya Airports Authority v Njogu Muigai, and Halsbury's Laws, emphasising that such injunctions require exceptional or unusually strong and clear cases because they often amount to granting the main relief at an interlocutory stage. The Court was skeptical of the appeal's arguability and found the nugatory limb unsatisfied since vacant possession and mesne profits are quantifiable and no evidence showed the respondent could not pay compensation. The motion was dismissed with costs. The lower court's ruling was not disturbed; the main suit remains pending before the High Court.

Questions the Court framed

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

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, unless the temporary mandatory injunction sought is granted, the intended appeal, if successful, will be rendered nugatory

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The Court was skeptical about the arguability of the intended appeal: the High Court Judge had applied the correct principles on temporary mandatory injunctions, and the applicant had not even shown service of summons or absence of a defence

Reasoning

The Court reviewed the pleadings and found no dates showing when the respondent entered the land or stole a march on the applicant. It was not shown that summons had been served or that the respondent had no likely defence. The Judge below was only arguably at fault for failing to cite her authoritative sources, but had correctly stated that mandatory injunctions require exceptional circumstances.

p. 4
02

Whether the intended appeal would be rendered nugatory if the injunction were not granted

Holding

No: the relief sought (vacant possession and mesne profits) is quantifiable and there was no evidence the respondent could not meet any monetary compensation

Reasoning

The applicant argued that the lease term was being eaten into irrecoverably and that the respondent was a man of straw. The Court found no averment in the supporting affidavit of the respondent's incapacity to pay, and observed that mesne profits and vacant possession are quantifiable and compensable in damages.

p. 4
03

Principles governing the grant of a temporary mandatory injunction

Holding

A temporary mandatory injunction is granted only in exceptional circumstances or in a clear case, since it is more drastic than a prohibitory injunction and often amounts to granting the major relief in the suit at an interlocutory stage

Reasoning

The Court set out the Shepherd Homes principles as adopted in East African Fine Spinners v Bedi Investments and Kenya Airports Authority v Njogu Muigai, and the passage from Halsbury's Laws: absent special circumstances, interlocutory mandatory injunctions are not granted unless the case is clear, the act is simple and remediable, or the defendant steals a march.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must satisfy both limbs - arguability of the intended appeal and the nugatory aspect - and satisfying only one is insufficient
  • A temporary mandatory injunction will not normally be granted at the interlocutory stage unless the case is unusually strong and clear; a mandatory injunction is more drastic in effect than a prohibitory one
  • An interlocutory order which results in granting the major relief claimed in the suit, which may not be granted at final hearing, ought not to be granted
  • Absent special circumstances, a mandatory injunction will not be granted on an interlocutory application unless the case is clear and ought to be decided at once, the act done is simple and easily remedied, or the defendant is stealing a march

Court orders

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  1. 1.The motion filed under rule 5(2)(b) of the Court of Appeal Rules seeking a temporary mandatory injunction pending the intended appeal is dismissed
  2. 2.The applicant shall pay the costs of the application

The bench

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

SB
majority
PW
majority
AV
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. ELC. No. 252 of 2008
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (original jurisdiction to grant injunctions and stay of proceedings pending intended appeal)

Relief refused

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Temporary mandatory injunction compelling the respondent, his servants, agents and tenants to give vacant possession of LR No. 209/14318 pending hearing and determination of the intended appeal

Granting the mandatory injunction at that stage would dispose of the substance of the intended appeal, and the appeal would not be rendered nugatory since mesne profits and loss are quantifiable and no averment showed the respondent could not meet monetary compensation

p. 4

Stay of further proceedings before the High Court and stay of execution of the orders of Ang'awa, J. of 18 June 2008 (abandoned at the hearing)

Learned counsel for the applicant abandoned prayer 1 and urged prayer 2 only

p. 1

Costs

We decline to grant the order sought and we order that this motion be and is hereby dismissed with costs.

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 will not help the applicant if he satisfies only one of those principles – see Githunguri v Jimba Credit Corporation Ltd (No. 2) [1988] KLR 838.
p. 1Twin principles for rule 5(2)(b) applications
at the interlocutory stage, when the final result of the case cannot be known and the court has to do the best it can, I think the case has to be unusually strong and clear before a mandatory injunction will be granted
p. 3High threshold for interlocutory mandatory injunctions
An order which results in granting a major relief claimed in the suit, which may not be granted at final hearing, ought not to be granted at an interlocutory stage.
p. 3Interlocutory relief must not grant the substantive relief in the suit
In our view, granting the mandatory injunction sought at this stage would leave nothing further to await in the intended appeal and we are not inclined to do so.
p. 4Reason for refusing the injunction
In all the circumstances we decline to grant the order sought and we order that this motion be and is hereby dismissed with costs.
p. 4Final orders and costs

Issues in the judgment

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minor

The suit property's land reference number is inconsistently rendered in the judgment (LR. No. 209/14318 in the prayers versus LR. No. 209/143/8 in the pleading recital)

minor

The Judge's surname is spelt inconsistently ('Ang'awa' and 'Angawa'/'Anga'wa') within the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Stephen Kipkebut t/a Riverside Lodge and Rooms v Naftali Ogola [2009] KECA 448 (KLR)", Case Analysis (2009). Civil Appli 146 of 2008 (UR 93/08). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/448/eng@2009-10-23

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