Sargent v Patel (Civil Appeal No. 32 of 1949) [1949] EACA 15 (1 January 1949)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR GRAHAM PAUL, C. J. (Tanganyika), EDWARDS, C. J. (Uganda), and Sir John Gray, C. J. (Zanzibar)

### EDWARD SARGENT, Appellant (Original Defendant)

# **CHHOTABHAI JHAVERBHAI PATEL, Respondent (Original Plaintiff)**

## Civil Appeal No. 32 of 1949

(Appeal from decision of H. M. Supreme Court of Kenya)

Appeal—Interim injunction—Costs.

The plaintiff-respondent alleged a partnership between himself and the defendant-appellant in which the appellant agreed to supply his tenancy of the premises as a partnership asset. The appellant intimated that he would sell the business as his own property whereupon the respondent applied for an interim injunction (1) restraining the appellant from alienating the business, (2) against "damaging by closing up or otherwise the business of the Regal Photo Service".

The injunction was granted by the Supreme Court on both heads.

*Held* $(2-11-49)$ .—(1) An appeal lies if it can be shown that the discretion has not been exercised judicially.

(2) That on the first heading (supra) the injunction was rightly granted pending the decision as to whom the business belonged.

(3) That on the second heading (supra) the injunction would not lie as the respondent had not asked for nor obtained an order for a Receiver.

(4) That the appellant be allowed half the costs of the appeal.

Morgan for the appellant.

Mandavia for the respondent.

JUDGMENT (delivered by SIR GRAHAM PAUL, C. J.).—This is an appeal from an order granting to the plaintiff-respondent an interim injunction. An appeal does lie to this court from the Supreme Court of Kenya against such an order, but the granting of such an order is a matter within the discretion of the Court below, and this Court will interfere only if it be shown that the discretion has not been exercised judicially.

The plaint alleged a partnership between plaintiff and defendant in<br>a business known as Regal Photo Service—a photographer's business in which the plaintiff was the manager, he being a skilled and experienced photographer, the defendant not being bound to devote any time to the business but to supply his tenancy of the premises as a partnership asset and contribute pecuniary capital to the same amount as the plaintiff, namely Sh. 20,000. The partnership was to pay the rent of the premises and profits were to be shared equally.

The plaint further averred that the defendant had intimated a repudiation of the partnership relationship and a claim that the plaintiff was the salaried<br>employee of the defendant. The defendant intimated that he proposed to sell the business which he claimed was his own property.

In these circumstances and before any statement of defence was filed the plaintiff moved the Court for an interim injunction, inter alia, restraining the defendant from alienating the business. It seems to me quite reasonable, and well within the judicial discretion of the Court below, that such an interim injunction should be granted pending decision of the question whether the business belonged to the partnership or to the defendant. The Court below granted that injunction and I see no reason why this Court should interfere with it, except to amend the order by deleting the word "partnership". The order effected no more than the preservation of the status quo.

The interim injunction, however, dealt with another matter raised in the plaint which alleged that the defendant had locked up his premises so that the plaintiff could do no business in them. The interim injunction on this subject, as sought and as granted, was against "damaging by closing up or<br>otherwise the business of the Regal Photo Service". Upon this part of the injunction it seems to me that the plaintiff was not entitled to ask or to receive what he asked. In his plaint he asks for dissolution of the partnership as from 30th May, 1949, the date of the plaint. That being so, it seems to me that the defendant was entitled to take possession or control of his premises from 30th May unless the plaintiff asked for and obtained an order for a receiver which was not done. In my view the Court below should have refused the injunction as regards the control of the premises.

I would therefore allow the appeal as regards that part of the injunction order and strike out that part of the order which grants the injunction against damaging by closing up or otherwise; and dismiss the appeal as regards the injunction against alignating the alleged partnership business, subject to the aforesaid amendment of the order.

I would allow the appellant half the costs of this appeal.

## EDWARDS, C. J.—I concur.

SIR JOHN GRAY, C. J.—I concur.