Russell Co Ltd v Commercial Bank of Africa Ltd &
Court of Appeal, at Nairobi December 29, 1985
Kneller, Nyarangi & Platt JJA
Civil Appeal No 31 of 1985
(Appeal from the High Court at Nairobi. Todd J)
Injunctions – interlocutory injunctions – principles upon which such injunctions are granted – where applicant’s imminent loss may not be compensated by damages – when court is in doubt to decide application on a balance of convenience – appeal against refusal to grant injunction – discretion of court to extend interim injunctions pending the appeal – matters court should consider in exercising such discretion.
The appellant filed a suit against the respondents claiming that the first respondent had wrongfully exercised its statutory power of sale as a mortgagee and sold to the second respondent a residential piece of land in which the appellant had an interest. The appellant also applied for an interlocutory injunction to restrain the first respondent from parting with the proceeds of the sale and the second respondent from transferring the land.
The High Court (Trainor J) granted the interim injunctions and when the application came for hearing inter partes, the Court (Todd J) concluded that the appellant could be adequately compensated by damages and declined to grant the application for injunctions. The Court also refused to extend the interim injunctions pending the appeal against the refusal of the application.
The appellant appealed against the substantive refusal to grant the injunctions.
1. It was a misdirection for the judge to describe the suit premises as a commercial undertaking for which the plaintiff could be compensated in damages. The premises was a property of vital concern to the plaintiff and one of its managing directors and its purpose was to provide either revenue or shelter.
2. The Court of Appeal may reconsider the discretion exercised by the trial judge, where there was a misdirection.
3. Had the judge not misdirected himself, he would have found that the case under the third principle in Giella v Cassman Brown Co Ltd  EA 358, that when a court is in doubt it will decide an application on the balance of convenience.
4. In exercising its discretion in an appeal against a refusal to order an injunction, the High Court should consider that the purpose of granting an injunction pending the appeal is to preserve the status quo for a short period until the notice of appeal has been lodged, after which the High Court can consider whether the nature of the appeal would be rendered nugatory if an injunction were not continued.
1. Erinford Properties Ltd v Cheshire County Council  2 All ER 448; Ch 261
2. Giella v Cassman Brown Ltd  EA 358 at p 360
3. Mbogo v Shah  EA 93
4. Clarke v Japan Machines (Australia) PTY Ltd  QLR 404
5. Williams & Glyn’s Bank v Boland  AC 487;  2 All ER 408
6. Souza Figuerido & Co Ltd v Moorings Hotel Co Ltd  EA 926
7. Cross v New Great Insurance Company Ltd of India  EA 94
8. Jandu v Kirpal  EA 225
9. Standard Chartered Bank v Walker  3 All ER 938; 1 WLR 141
10. Cuckmere Brick Company Ltd v Mutual Finance Ltd  2 All ER 633;  Ch 949
11. Tse Kwong Lam v Wong Chit Sen  3 All ER 54; 1 WLR 1349
Das, S.K. “The Torrens System in Malaya, Singapore” Malayan Law Journal, 1963
1. Civil Procedure Act (cap 21) section 7
2. Civil Procedure Rules (cap 21 Sub Leg) order XX rule 5A
3. Transfer of Property Act sections 52, 69A, 69B(2)
4. Registration of Titles Act (cap 281) sections 2, 23, 24, 32, 75, 80
5. Evidence Act (cap 80) section 46
Mr Kamau Kuria for the Appellant