Equip Agencies Limited v I & M Investment Bank & 3 others (Application 13 of 2020) [2021] KESC 70 (KLR) (17 March 2021) (Ruling)
Equip Agencies Limited v I & M Investment Bank & 3 others [2021] eKLR
Neutral citation:
[2021] KESC 70 (KLR)
Republic of Kenya
Application 13 of 2020
PM Mwilu, Ag.CJ & Ag. P, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ
March 17, 2021
Between
Equip Agencies Limited
Applicant
and
I & M Investment Bank
1st Respondent
John Gikonyo t/a Garam Investment Auctioneers
2nd Respondent
Lucas Kiiru Ngingi, Paul Mbugua & Mary Wangari Gathume Sued in their Capacities as Office Bearers of Gilgil Total Investors Self Help Group
3rd Respondent
Gilgil Treatment Industries
4th Respondent
(Being an application for stay of execution and injunction against the Ruling and Order of the Court of Appeal (Warsame, Gatembu & Mohammed, JJ.A) in Civil Application No. 31 of 2019 (UR 37/2019), delivered at Nairobi on 8th May, 2020, pending the hearing and determination of Petition of Appeal No. 10 of 2020.)
Supreme Court's jurisdiction to grant interlocutory orders for injunction where the substantive matter was still pending before the High Court.
The case revolved around the question of whether the Supreme Court had jurisdiction by virtue of article 163 (4)(a) of the Constitution to grant interlocutory orders for injunction where the substantive matter was still pending before the High Court. The court held that Where the substantive matter is still pending before the High Court, the Supreme Court would be hesitant to assume jurisdiction.
Jurisdiction - Jurisdiction of the Supreme Court - Supreme Court's jurisdiction to grant interlocutory orders for injunction where the substantive matter was still pending before the High Court - whether the Supreme Court had jurisdiction to entertain appeals challenging the exercise of discretion by the Court of Appeal under rule 5(2)(b) of the Court's Rules - Constitution, article 163(4)(a); Court of Appeal Rules, 2020 rule 5(2)(b)
Brief facts
The Applicant sought an order of injunction restraining the respondent from in any way interfering with the applicant’s ownership or title to the suit property pending the hearing and determination of Petition No. 10 of 2020. The Petition sought to appeal the Ruling and Order of the Court of Appeal wherein the Appellate Court, while determining an application for injunction brought under rule 5 (2) (b) of the Court of Appeal Rules, affirmed the High Court’s Ruling that the applicant had failed to meet the threshold for grant of an injunction pending the hearing and determination of the substantive suit.
Issues
- Whether the Supreme Court had jurisdiction to entertain appeals challenging the exercise of discretion by the Court of Appeal under rule 5(2)(b) of the Court's Rules.
- Whether the Supreme Court had jurisdiction by virtue of article 163 (4)(a) of the Constitution to grant interlocutory orders for injunction where the substantive matter was still pending before the High Court.
Held
- The application before the Court of Appeal was brought under rule 5 (2) (b) of the Court of Appeal Rules. The impugned ruling was arrived at by the Court of Appeal in exercise of its discretionary powers.
- From previous decisions of the Supreme Court, save for very exceptional circumstances, an appeal did not lie to the Supreme Court, from the Court of Appeal’s ruling under rule 5 (2) (b) of the Court of Appeal Rules. The instant application did not establish any basis for an exception to the said precedents.
- Similarly, the holding in the Teachers Service Commission Case was not distinguishable. There was no substantive Judgement by the Court of Appeal on the basis of which the Court could grant an injunction in the manner and style, as prayed by the applicant. The substantive dispute still remained unresolved by the High Court. Where the substantive matter is still pending before the High Court, the Supreme Court would be hesitant to assume jurisdiction.
- The Supreme Court lacked jurisdiction to entertain both the application and the intended appeal.
Application dismissed.
Orders
- The Application was dismissed.
- The decision of the Court of Appeal delivered on 8th May 2020, declining Orders for injunction was affirmed.
- Consequently, Petition No. 10 of 2020 was dismissed.
- The costs of the Application and Petition would be borne by the Applicant.
Citations
CasesKenya
- Board of Directors, Moi High School Kabarak & another v. Malcom Bell Civil Application 12 & 13 of 2012; [2013] KECA 13 (KLR) - (Followed)
- Damji Patel Pragji Mandavia v Sara Lee Household & Bodycare (K) Limited Civil Application No Nai 345 of 2004 - (Explained)
- Kilaveri v Ethics & Anti – Corruption Commission & another Petition Petition15A of 2016; [2018] KESC 20 (KLR) - (Explained)
- Kinyanjui, Stanley Kangethe v Tony Keter & others Civil Application 31 of 2013; [2013] KECA 378 (KLR) - (Mentioned)
- Muriithi & 32 others v Law Society of Kenya & another Civil Application 12 of 2015; [2016] KESC 13 (KLR) - (Followed)
- Njihia, Daniel Kimani v Francis Mwangi Kimani & another Civil Application 3 of 2014; [2015] KESC 19 (KLR) - (Explained)
- Teachers Service Commission v Kenya National Union of Teachers & 3 others Application 16 of 2015; [2015] KESC 29 (KLR) - (Followed)
- Constitution of Kenya articles 2(1)(3); 4; 50; 163 (4)(a); 163(7) — (Interpreted)
- Court of Appeal Rules, 2020 (cap 9 Sub Leg) rule 5(2)(b) — (Interpreted)
- Land Act (cap 280) sections 84, 99 — (Interpreted)
- Supreme Court Act (cap 9B) sections 15(2); 21(1); 24(1) — (Interpreted)
- Supreme Court Rules, 2012 (cap 9B Sub Leg) rules 9(1); 23; 26; 33(2) -(Interpreted)
Ruling
A. Introduction
1.This application is dated June 26, 2020, and lodged on June 30, 2020, seeking an Order for injunction restraining the respondent from in any way interfering with the applicant’s ownership or title to Land Reference Number LR No Gilgil Township Block 2/210, (the suit property) pending the hearing and determination of Petition No 10 of 2020. It is brought under the provisions of articles 2(1),(3),4, 163(4)(a) and (7) of the Constitution, sections 15(2), 21(1) and 24(1) of the Supreme Court Act 2011, and rules 23 and 26 of the Supreme Court Rules, 2012.
2.Petition No 10 of 2020, is dated June 19, 2020, and is brought pursuant to article 163(4)(a) of the Constitution, section 15(2) of the Supreme Court Act, and rules 9(1) and 33(2) of the Supreme Court Rules 2012 (revoked). It seeks to appeal the Ruling and Order of the Court of Appeal (Warsame, Gatembu & Mohammed JJ A) in Civil Application No 31 of 201(UR 37/2019 delivered at Nairobi on May 8, 2020, wherein the Appellate Court, while determining an application for injunction brought under rule 5(2)(b) of the Court of Appeal Rules, affirmed the High Court’s ruling (Tuiyott, J) in Nairobi HCCC No 417 of 2018 (formerly Naivasha HCCC No 9 of 2016) that the applicant had failed to meet the threshold for grant of an injunction pending the hearing and determination of the substantive suit. The Motion is supported by the applicant’s affidavit sworn by Divyesh Indubhai Patel on August 9, 2020.
B. The Applicant’s Case
3.In its written submissions dated June 29, 2020 and further submissions dated July 2, 2020, the applicant submits on three limps. Firstly, the applicant argues that this Court has jurisdiction to grant interlocutory orders and to entertain the intended appeal. In support thereof, the applicant relies on the decisions of this Court in Teachers Service Commission v Kenya National Union of Teachers & 3 others; Application No 16 of 2015, [2015] eKLR (Teachers Service Commission Case) and Board of Directors, Moi High School Kabarak & another v Malcom Bell; Application Nos 12 & 13 of 2012, [2013] eKLR (Malcom Bell) case. It seeks to distinguish the instant application from the decision in the Teachers Service Commission case. Towards this end, it is submitted that the applicant has lodged Petition No 1 of 2020 and has satisfied the general requirement, to the effect that, there must be a pending appeal before the Supreme Court before it can grant an injunction or any other interlocutory Order.
4.Secondly, it is submitted that the intended appeal is arguable on grounds that, the Court of Appeal exceeded its jurisdiction and delved into the merits of the case pending before the High Court, contrary to this court’s holding in the Teachers Service Commission Case, Deynes Muriithi & 4 others v Law Society of Kenya & another; SC Application No 12 of 2015, [2016] eKLR (Deynes Muriithi Case), and Damji Patel Pragji Mandavia v Sara Lee Household & Bodycare (K) Limited, Civil Application No Nai 345 of 2004.
5.The applicant adds that as a result, it was prejudiced and exposed to an unjust outcome, in violation of its rights under article 50 of the Constitution. It is therefore the applicant’s contention that the intended appeal raises issues of interpretation and application of the Constitution under article 163(4)(a) of the Constitution.
6.It is the applicant’s submission that the appeal will be rendered nugatory, unless the injunctive reliefs sought are granted, as the respondent will proceed with the disposal of the suit property and eviction of the applicant. In conclusion, the applicant submits that the Court of Appeal decision is against public policy as it ignored the provisions of sections 84 and 99 of the Land Act.
C. The Respondents’ Case
7.The 4th respondent filed its submissions dated July 7, 2020in support of the application. It essentially agrees with the applicant, that this court has jurisdiction to grant interlocutory Orders. It also supports the submission that the Court of Appeal lacks jurisdiction to decide on substantive issues pending before the High Court, and that in doing so, it deprived the parties a right to be heard as protected under the Constitution.
8.The 3rd respondent, vide its submissions dated July 6, 2020, urges that this courtlacks jurisdiction under article 163(4)(a) of the Constitution. it is the respondent’s case that the appeal does not involve matters of interpretation and application of the Constitution. It is the respondent’s further case that whereas this court has jurisdiction to grant interlocutory orders, that jurisdiction can only be exercised in accordance with its decisions in inter alia, Malcom Bell Case and Teachers Service Commission case. To this end, it is submitted that the appeal before the court, is against a Ruling of the Court of Appeal made under rule 5(2)(b) of the Court of Appeal Rules. In the circumstances, the court is devoid of jurisdictions as held in Stanley Kangethe Kinyanjui v Tony Keter & others [2013] eKLR, and Deynes Muriithi case.
D. Issues for Determination
9.Two issues fall for the court’s consideration i.e., whether this court has jurisdiction to hear and determine the instant application and subsequently the appeal; and whether the court should grant orders for injunction.
E. Determination on Jurisdiction
10.The applicant urges that this court has jurisdiction to grant interlocutory orders and relies on this court’s decisions in the Teachers Service Commission case and Malcom Bell case. It also submits that the appeal and instant application are arguable as the Court of Appeal exceeded its jurisdiction and delved into the merits of the case pending before the High Court, contrary to this court’s finding in Teachers Service Commission Case and Deynes Muriithi case.
11.On the other hand, it is the 3rd respondent’s submission first, that this court lacks jurisdiction under article 163(4)(a) of the Constitution as the appeal does not involve matters of interpretation and application of the Constitution. Secondly, the 3rd respondent submits that, whereas this court has jurisdiction to grant interlocutory orders, it is devoid of jurisdiction to hear appeals against a Ruling of the Court of Appeal made under rule 5(2)(b) of the Court of Appeal Rules. It relies on this court holding in Stanley Kangethe Kinyanjui case, and Deynes Muriithi case.
12.In Daniel Kimani Njihia v Francis Mwangi Kimani & another SC Application No 3 of 2014 [2015] eKLR (Daniel Kimani Njihia) case, this court stated:‘[21]……. Not all decisions of the Court of Appeal are subject to appeal before this Court. One category of decisions we perceive as falling outside the set of questions appealable to this court, is the discretionary pronouncements appurtenant to the Appellate Court’s mandate. Such discretionary decisions, which originate directly from the Appellate Court, are by no means the occasion to turn this court into a first appellate Court, as that would stand in conflict with the terms of the Constitution.’ [Emphasis added]
13.From the pleadings and submissions before us, it is undoubtedly clear that under paragraph 2 of the said Ruling, the application before the Court of Appeal was brought under rule 5(2)(b) of the Court of Appeal Rules. The impugned Ruling was arrived at by the Court of Appeal in exercise of its discretionary powers. From the decisions of this court in Teachers Service Commission case, Deynes Muriithi Case, Daniel Kimani Njihia case, etc, it is clear that save in very exceptional circumstances, an appeal does not lie to this court, from the Court of Appeal’s Ruling under rule 5(b) of that Court’s Rules. We do not see how the application before us has established any basis for an exception to our decisions cited above.
14.By the same token, we don’t see how our holding in the Teachers Service Commission case is distinguishable. There is no substantive Judgement by the Court of Appeal on the basis of which this court can grant an injunction in the manner and style, as prayed by the applicant. The substantive dispute still remains to be resolved by the High Court. In Boniface Katana Kilaveri v Ethics & Anti-Corruption Commission & Commissioner of Lands; SC Petition No 15A of 2016, [2018] eKLR, this court held that where the substantive matter is still pending before the High Court, the Supreme Court would be hesitant to assume jurisdiction. The court stated:
15.Consequently, we must arrive at the inescapable conclusion to the effect that this court lacks jurisdiction to entertain both the application and intended appeal.
F. Orders
DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF MARCH, 2021.……………………..…………........................P. M. MWILUAg. CHIEF JUSTICE & Ag. PRESIDENT OF THE SUPREME COURTJUSTICE OF THE SUPREME COURT……………………………………………….....M. K. IBRAHIMJUSTICE OF THE SUPREME COURT……………………………..……..……….……S. C. WANJALAJUSTICE OF THE SUPREME COURT………………………………………………….NJOKI NDUNGUJUSTICE OF THE SUPREME COURT……..…………………………………………..I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA