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Court of AppealDismissedCivil Appeal No. 139 of 2006

Gichuki Gathaara Kimiti v Ndirangu Njogu & another [2011] KECA 92 (KLR)

Court of Appeal of Kenya
2 December 2011
ROR. S. C. OmoloEGE. M. GithinjiJNJ. G. Nyamu
1,477 words in judgment
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The bottom line

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The Court of Appeal confirmed that Kenyan courts will not stop a sale of land by injunction unless you first go back to court and challenge the order behind it.

What this practically means

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Executive summary

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This Court of Appeal at Nyeri judgment (Omolo, Githinji and Nyamu, JJ.A) dismissed the appellant Gichuki Gathaara Kimiti's appeal against a ruling of Okwengu, J. of the High Court at Nyeri dated 24th November 2005, which had refused an interim injunction restraining the respondents from alienating, selling or interfering with land parcels Nos. Muhito/Gaturia/1493 and 1494. The dispute arose from a sale-of-land decree obtained by Peterson Mwangi Kariuki against Ndirangu Njogu in Nyeri CMCC No. 474 of 2000. Gichuki's objection to attachment was dismissed in the subordinate court and upheld on appeal by the High Court (Khamoni, J.). Gichuki then sued Njogu in HCCC No. 28 of 2004 and obtained a consent judgment, but Peterson was later joined as an interested party, the consent judgment set aside, and the parcels sold to Peterson at a public auction on 25th February 2005. The appellate court held that, although the validity of some subordinate court orders and of the auction itself were doubtful - including whether Peterson paid the purchase price and whether accounts of the sale proceeds were settled - the appellant had never applied to the subordinate court to set aside the adverse orders, which therefore remained binding. Refusing the injunction, the High Court exercised its discretion judicially; an injunction would have been contrary to public policy and an abuse of process by interfering with execution of a lawful court order. The appeal was dismissed with no orders as to costs, the Court declining to penalise the appellant.

Questions the Court framed

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

  1. 1.Whether the High Court Judge erred in dismissing the appellant's application for an injunction restraining the respondents from alienating, selling or interfering with land parcels Nos. Muhito/Gaturia/1493 and 1494
  2. 2.Whether the Judge exercised her discretion judicially in declining to grant the injunction

Key legal issues

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01

Whether the High Court discretion to refuse an injunction was properly exercised where the suit property had been attached and sold in execution of a lawful decree

Holding

The appeal, being against a discretionary order, failed because the appellant had not taken steps to set aside the attachment, sale and related orders, and granting an injunction would have interfered with execution of a lawful court order.

Reasoning

The Court noted that although the validity of some subordinate court orders and the auction itself were doubtful, the appellant had made no application to impugn them. The High Court therefore properly found no prima facie case, and an injunction would have been contrary to public policy and an abuse of process as it would obstruct execution of a lawful court order. The discretion was exercised judicially and there was no basis for appellate interference.

p. 3

Legal principles established

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  • A litigant cannot ignore orders of a court that remain in force; a party aggrieved by an order of attachment and sale in execution must take steps to set it aside, failing which he remains bound by it, and an injunction will not issue to interfere with execution of a lawful court order.
  • An appellate court will not interfere with a discretionary decision of the High Court unless it is shown that the discretion was not exercised judicially.

Court orders

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  1. 1.Appeal dismissed
  2. 2.No orders as to costs

The bench

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

RO
majority
EG
majority
JN
majority
On appeal from
High Court of Kenya at Nyeri
H.C.C.C. No. 28 of 2004
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (Court of Appeal Act; Constitution), on appeal against a discretionary interlocutory ruling

Relief refused

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Injunction restraining Njogu and Peterson from alienating, selling or interfering with parcels Nos. 1493 and 1494

The suit properties had already been attached in execution of a decree of the subordinate court and sold to Peterson, and the appellant had not applied to set aside the adverse orders; the High Court discretion was exercised judicially

p. 3

Costs

No orders as to costs - 'We do not find it just to penalize the appellant with costs in the circumstances. Accordingly we make no orders as to 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 is not open to him to ignore the orders of the court as long as the same remain in force.
p. 2Binding effect of court orders in force
the appellant did not make any application to the subordinate court to set aside any of the adverse orders and to that extent the orders have not been impugned.
p. 3Failure to impugn adverse execution orders
In the light of those circumstances the High Court in dismissing the application for injunction exercised its discretion judicially. The result is that the appeal is dismissed.
p. 3Disposition - appeal against discretionary order
We do not find it just to penalize the appellant with costs in the circumstances. Accordingly we make no orders as to costs.
p. 3Final orders on costs

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, "Gichuki Gathaara Kimiti v Ndirangu Njogu & another [2011] KECA 92 (KLR)", Case Analysis (2011). Civil Appeal No. 139 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/92/eng@2011-12-02

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