Nguruman Limited v Jan Bonde Nielsen & 2 others
The bottom line
#Kenya's Court of Appeal confirmed you can still appeal an injunction even after asking the High Court to vary it, as long as the original order survives.
What this practically means
#Executive summary
#Key legal issues
#Whether an application under Order 40 (7) for variation of an order during the pendency of an appeal bars the appeal
No. The law avails an aggrieved party the remedies of appeal and of an application for discharge, variation or setting aside of an order without any express edict that they are only alternative remedies; an appellant does not forfeit the right of appeal merely by resorting to Order 40 (7).
The court reasoned that an application under Order 40 (7) may result in discharge, variation, partial variation or dismissal, and it cannot be that in all those eventualities the right of appeal is forfeited. The test is the extent of variation of the order appealed from. Only if the order appealed from is superseded does the appeal fail. The Mulla passage relied on by the first respondent concerned review under section 80/Order 45, which expressly makes review and appeal alternative remedies; no such limitation appears in Order 40 (7).
Whether the order of Odunga J was varied or superseded by the ruling of Mabea J so that the appeal was moot
No. The effect of Mabea J's order was not to vary or fundamentally change the order of Odunga J but merely to clarify that the appellant had unrestricted access to, possession, occupation and enjoyment of the suit property save what was prohibited by the order of Odunga J, which remained in force.
The order that aggrieved the appellant was the injunction restraining it from interfering with the Ol Donyo Laro homestead, and that order still subsisted after Mabea J's ruling. Mabea J dismissed the variation application but granted two prayers clarifying the appellant's access and possession rights subject to the Odunga J order. Since the substratum of the appeal - the order of Odunga J - remained, the appeal was alive and the Court had jurisdiction to hear it.
Whether the court could entertain an unnotified preliminary objection on jurisdiction
Yes. The court allowed the objection to be argued without notice for three reasons: if successful it would determine the entire appeal; a court seized of a matter in which jurisdiction is challenged must decide the issue right away on the material before it; and the other parties were prepared to argue it notwithstanding lack of notice.
The court invoked its inherent duty to satisfy itself of its own jurisdiction, citing Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd, and noted the objecting party's failure to file and serve notice was cured by the other parties' willingness to argue the objection given the urgency and importance of the appeal to them.
Legal principles established
#- A litigant who applies under Order 40 (7) of the Civil Procedure Rules for discharge, variation or setting aside of an interlocutory injunction order does not, by that fact alone, forfeit the right of appeal against that order; the remedies are not restricted to being alternatives
- The true test of whether a successful application under Order 40 (7) precludes an appeal is the extent to which the order appealed from has been varied or altered; if the order appealed from remains substantially in force and is the order that aggrieved the appellant, the appeal is not moot and the Court retains jurisdiction
- Review under section 80 of the Civil Procedure Act and Order 45 and an appeal are alternative remedies, unlike an application under Order 40 (7), and the Mulla authority on review supplanting an appeal does not apply to Order 40 (7) applications
Court orders
#- 1.The preliminary objection on jurisdiction is dismissed
- 2.The first respondent to pay the costs of the preliminary objection
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 332 of 2010
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under Article 164 of the Constitution, read with Order 40 Rules 1, 2 and 7 of the Civil Procedure Rules; the appeal was lodged against a ruling of the High Court granting an interlocutory injunction
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Uyoga v Ali & another (Environment and Land Case E222 of 2025) [2026] KEELC 3000 (KLR)[2026] KEELC 3000 (KLR)15 May 2026applied
Cite this brief
#Cite this brief
Caselaw, "Nguruman Limited v Jan Bonde Nielsen & 2 others", Case Analysis (2013). Civil Appeal 77 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/347/eng@2013-04-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.