Joseph Ntombura v Godfrey Simiyu & 4 others [2018] KECA 97 (KLR)
The bottom line
#Kenya's Court of Appeal lifted orders blocking Rev. Ntombura from serving as Methodist Church Bishop, ruling the trial court applied Kenya's injunction test backwards.
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 trial court had jurisdiction to hear and determine the matter notwithstanding the Church's internal dispute resolution mechanism
- 2.Whether the threshold for granting interlocutory injunctive orders was met
- 3.Whether the orders issued by the trial court are incapable of enforcement
- 4.Whether the 1st to 4th respondents had locus standi in the application preceding the appeal
Key legal issues
#Whether the trial judge properly found a prima facie case
The Court was satisfied that the 1st to 4th respondents had established a prima facie case with probability of success.
Both the supporting affidavit and the replying affidavit raised contested issues requiring a full hearing, but on the documented evidence the Court accepted that a prima facie case had been laid out. This ground therefore did not found the appeal.
Whether the irreparable harm limb of the Giella test was correctly applied
The trial judge erred: he found the appellant, not the applicants, would suffer irreparable harm, which inverts the second Giella test.
The second Giella test asks whether the applicant will suffer irreparable injury not adequately compensable in damages. The trial judge instead found that the respondent and the Church would suffer such harm. In the absence of a finding that the applicants would suffer irreparable harm, the orders should not have issued.
Where the balance of convenience lay
The balance of convenience tilted in favour of the Church, negating the grant of injunctive orders.
Relying on the reasoning in Richard Owino v Richard Abwao, the Court held that ousting the Bishop pending trial would paralyse the Church and its institutions. It was uncontroverted that the Church had a property manager safeguarding Church property, so restraining the appellant was unnecessary and oppressive.
Legal principles established
#- An interlocutory injunction will not issue where the applicant has not demonstrated that the applicant (not the respondent) would suffer irreparable harm not compensable in damages.
- Where the balance of convenience favours the party or institution against whom the injunction is directed, the injunctive orders ought not to be granted.
- The Court of Appeal will interfere with a trial judge's exercise of equitable discretion in granting injunctions only where the discretion was not exercised judicially.
Court orders
#- 1.Appeal allowed
- 2.The Ruling delivered on 22nd July 2016 by the High Court of Kenya and all consequential orders set aside in entirety
- 3.The 1st to 4th respondents to bear the costs of the application before the trial court and the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- High Court Civil Case No. 360 of 2015
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over an interlocutory appeal from the High Court
Relief refused
#Upholding the interlocutory injunction restraining the appellant from holding office as Bishop
The trial judge erred: the irreparable harm test was not applied to the applicants, and the balance of convenience favoured the Church
Costs
The 1st to 4th respondents shall bear costs of the application before the trial court and the costs in this appeal.
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.
The test should be whether the person applying for the injunctive relief will suffer irreparable harm. The test is not whether the person against whom the orders is to be made will suffer irreparable harm.
In the absence of such a finding, the second test in Giella - v- Cassman was not established and the trial court erred in issuing the interlocutory orders.
We accordingly allow the appeal and hereby set aside in entirety the Ruling delivered on 22nd July 2016 by the High Court of Kenya and all consequential orders.
The 1st to 4th respondents shall bear costs of the application before the trial court and the costs in this appeal.
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.
Cite this brief
#Cite this brief
Caselaw, "Joseph Ntombura v Godfrey Simiyu & 4 others [2018] KECA 97 (KLR)", Case Analysis (2018). Civil Appeal No. 361 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/97/eng@2018-12-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.