Philes Nyokabi Kamau v Industrial & Commercial Development Corporation [2017] KECA 180 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a property owner's bid to block a land sale, ruling money compensation was adequate even though the lower court had applied the wrong legal test.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned trial Judge exercised his discretion judiciously when he withheld the injunction from the appellant on account of both the application and the latter suit on which it was anchored being res judicata
- 2.Whether, independently of the res judicata finding, the appellant established the threshold for the grant of an interlocutory injunction
Key legal issues
#Whether the trial judge erred in applying the doctrine of res judicata to dismiss the injunction application
Yes - res judicata was erroneously applied because neither suit nor the interim application in the former suit had been finally determined, and the doctrine was not even invoked in the replying affidavit
The court set out the ingredients of res judicata under section 7 of the Civil Procedure Act: the issue must be directly or substantially in issue in the former suit, the parties must be the same or litigating under the same title, and a competent court must have finally determined the suit. Both suits remained undetermined, the record was silent on the outcome of the interim application in the former suit, and the doctrine was not pleaded in the replying affidavit. Hence the trial judge erred in invoking it. However, that finding alone did not entitle the appellant to the injunction.
Whether the appellant satisfied the Giella v Cassman Brown threshold for an interlocutory injunction
No - although a prima facie case was demonstrated, damages were an adequate remedy since the value of the suit property was computable and payable in monetary terms; the balance of convenience therefore did not arise
Applying the Nguruman restatement of the Giella principles as sequential hurdles, the court accepted that the appellant, as registered proprietor who pleaded she had met her liability under the charge and that the charge was invalid, had demonstrated a prima facie case with a probability of success. But the second pillar failed: the value of the property could be computed and paid for in monetary terms, so injunctive relief does not lie, and the balance of convenience did not need consideration. The appeal was accordingly dismissed.
The standard for interfering with the exercise of judicial discretion by a trial court
The appellate court will not disturb a discretionary decision unless the judge misdirected himself, misapprehended the facts, took into account irrelevant or failed to take into account relevant considerations, or the decision is plainly wrong
The court canvassed the classic authorities of Mbogo v Shah (De Lestang VP and Newbold P) and United India Insurance v East African Underwriters (Madan JA), which have crystallised the principles guiding interference with discretionary decisions. Although the court found the res judicata reasoning erroneous, it nonetheless had no reason to disturb the ultimate finding because the injunction still failed on the merits under the second limb of the Giella test.
Legal principles established
#- Res judicata under section 7 of the Civil Procedure Act requires a final determination of the former suit or issue; it cannot be invoked where both suits remain undetermined and the doctrine was not pleaded by the party resisting the application.
- The Court of Appeal will not interfere with a trial judge's exercise of discretion unless the judge misdirected himself, acted on wrong matters, failed to consider relevant matters, or was plainly wrong.
- An interlocutory appeal does not permit the appellate court to make definitive findings of fact or law that may embarrass the fair trial of the pending suit.
Court orders
#- 1.The appeal is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- H.C.C.C. No. 515 of 2013
- Jurisdiction invoked
- First appellate jurisdiction over an interlocutory appeal from the High Court (Civil Procedure Act, section 3A and the Civil Procedure Rules regime governing interlocutory appeals)
Relief refused
#Allowance of the appeal and grant of the interlocutory injunction restraining the respondent from selling the suit property
Although res judicata was erroneously applied below, the value of the suit property could be computed and paid for in monetary terms, so damages were an adequate remedy and injunctive relief does not lie
Costs
No order as to costs - the appeal was dismissed with no order as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result and for the reasons we have stated above, we have no reason to disturb the finding of the learned Judge. Accordingly the appeal is without merit and we order that it be and is hereby dismissed with no order as to costs.
In the absence of proof of the final determination of both suits and the interim application in the former suit, there was no basis for the application of the doctrine of res judicata to the latter application.
The doctrine was therefore erroneously applied to deny the injunction.
These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent.
A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial.
The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first that the Judge misdirected himself in law; secondly, that he misapprehended the facts
Issues in the judgment
#The judgment records that the trial court dismissed the application for being res judicata as one ground of appeal, but also states the appellant conceded the pendency of the former suit; more significantly, the court finds the res judicata doctrine erroneously applied yet simultaneously states the value of the property is computable in monetary terms while earlier observing the interim application outcome was unknown - the internal tension between 'Since we are in no doubt about the first two pillars' (implying doubt was resolved in the appellant's favour on the first pillar) and the dismissal of a prima facie case-established appellant is visible in the judgment itself.
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.
- Wesley Kipyegon Bor & 8 others v Richard Pares & 3 others [2020] KEELC 2586 (KLR)[2020] KEELC 2586 (KLR)29 Apr 2020
Cite this brief
#Cite this brief
Caselaw, "Philes Nyokabi Kamau v Industrial & Commercial Development Corporation [2017] KECA 180 (KLR)", Case Analysis (2017). Civil Appeal No. 263 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/180/eng@2017-11-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.