Lulu East Africa Ltd v National Social Security Fund & 3 others
The bottom line
#Kenya's Court of Appeal upheld the setting aside of a tribunal injunction but struck out premature findings about a landlord-tenant relationship made before a full hearing.
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 superior court erroneously interfered with the discretion of the tribunal
- 2.whether the superior court made conclusive findings on an interlocutory application
- 3.whether the superior court was wrong in allowing the 4th respondent's application to be joined as an interested party
Key legal issues
#Interference with the tribunal's discretion on interim injunction
The superior court properly interfered: no prima facie case was established and no irreparable injury not compensable by damages was shown
Applying Giella v Cassman Brown, the court found no evidence of a contract between the 1st respondent and the appellant or 2nd respondent; the management and service contract was with the 3rd respondent. Absent a prima facie case and irreparable injury, the tribunal's discretionary interlocutory orders were rightly disturbed on appeal.
Conclusive findings in an interlocutory appeal
The learned judge erred in conclusively determining the relationship between the 1st and 3rd respondents and that the 3rd respondent could not sublet; those findings were expunged
Because the matter was interlocutory, the judge should not have made binding pronouncements on the nature of the contractual relationships. The tribunal, upon a full hearing, is the appropriate forum. The Court expunged the conclusive findings while upholding the rest of the superior court's orders.
Joinder of the 4th respondent as an interested party
The superior court cannot be faulted; the 4th respondent had sufficient interest under the Communications Commission of Kenya threshold
Applying the Supreme Court's test that an interested party has a stake in the proceedings and will be affected by the decision, and the Meme v Republic reasons of complete settlement, protection of rights and preventing proliferated litigation, the 4th respondent's joinder was proper since relationships between the parties remained undetermined.
Legal principles established
#- On a second appeal, the Court confines itself to matters of law only, unless matters were considered that should not have been, or matters that should have been considered were omitted, or the decision is perverse
- An appellate court will not interfere with the exercise of discretion by the court below except on established grounds of misdirection, failure to consider relevant matters, consideration of irrelevant matters, or clear abuse of discretion
- A first appellate court should not make conclusive findings on the relationships between parties in an interlocutory appeal; such determinations belong to the tribunal upon a full hearing
Court orders
#- 1.The superior court's conclusive findings on the relationship between the 1st and 3rd respondent be and are hereby expunged from the record
- 2.The orders by the superior court are hereby upheld
- 3.Costs of this appeal shall abide the outcome of the reference
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nairobi
- ELC Appeal No. 60 (B) of 2016
- Jurisdiction invoked
- Second appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction; mandate confined to matters of law on second appeal
Relief refused
#The appeal on all remaining grounds (interference with tribunal discretion and joinder of the 4th respondent)
Superior court properly interfered with the tribunal's discretion as no prima facie case or irreparable injury was established; the 4th respondent met the interested party threshold
Costs
Costs of this appeal shall abide the outcome of the reference
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.
Save to the limited extent that the judge erred in conclusively determining that the relationship between the 1st respondent and the 3rd respondent was strictly a management and service contract and that 3rd respondent could not sublet the parking bay, this appeal is found to lack merit on all the remaining grounds and is dismissed.
The superior court's conclusive findings on the relationship between the 1st and 3rd respondent be and are hereby expunged from the record.
The orders by the superior court are hereby upheld.
Costs of this appeal shall abide the outcome of the reference
on a second appeal, the Court confines itself to matters of law only
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lulu East Africa Ltd v National Social Security Fund & 3 others", Case Analysis (2024). Civil Appeal 212 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1936/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.