[2004] KEHC 1033 (KLR)
The court found that the applicant had approached the court under the wrong procedural order by seeking a temporary injunction under Order 41, which deals with stay of execution, rather than under the appropriate order for injunctions. Furthermore, the applicant already had a pending application for injunction...
Source-derived case information.
- Citation
- [2004] KEHC 1033 (KLR)
- Parties
- Appellant: Agnes Moraa Omweno; Respondent: Grace Moraa Omweno; Respondent: Henry Nyabuto Kirochi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 282 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Application for Temporary Injunction Pending Appeal
- Outcome
- application for temporary injunction dismissed
- Judges
- K Bauni
- Legal Topics
- Temporary Injunctions, Stay of Execution, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agnes Moraa Omweno
Appellant
Grace Moraa Omweno
Respondent
Henry Nyabuto Kirochi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Temporary Injunction Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction pending appeal.
- 2 Whether the application for injunction is properly before the court under the correct procedural rules.
- 3 Whether bringing a second application for injunction before the first is determined constitutes an abuse of court process.
Ratio Decidendi
The court found that the applicant had approached the court under the wrong procedural order by seeking a temporary injunction under Order 41, which deals with stay of execution, rather than under the appropriate order for injunctions. Furthermore, the applicant already had a pending application for injunction before the magistrate's court, and bringing a second application before the High Court before the first was determined would create confusion and amounted to an abuse of court process. The court therefore declined to grant the orders sought for a temporary injunction.
Court Disposition
application for temporary injunction dismissed
Orders
- The application for temporary injunction is declined.
- Applicant may be given a date on priority basis for inter partes hearing.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII CIVIL APPEAL NO. 282 OF 2004
AGNES MORAA OMWENO ………..………………... APPELLANT/APPLICANT VERSUS GRACE MORAA OMWENO ) ……………………………….. RESPONDENTS HENRY NYABUTO KIROCHI )
RULING:
I have considered the application and the submission by counsel for the applicant. I think the applicant has come to this court the wrong way. He is applying for a temporary injunction. However Order 41 rule 4(1) and (6) CPR deals with stay of execution of the lower court’s order pending the hearing of appeal. Injunctions are provided for under Order 3a CPR. That is not the order the applicant is proceeding on.
The proper route the applicant should have taken is to apply for stay of execution of the order given by the magistrate discharging the temporary orders until the appeal is heard. He has already an application for injunction pending before the magistrate’s court.
That application has not been fully determined and yet he has applied for another injunction before this court. This will lead to confusion for if the application for injunction is heard and determined by this court she did not tell court what will happen to the application already pending in the lower court. Her appeal is against a specific order made by the court.There is no application to stay that order as provided for under order 41 rule 4(1) CPR. It would therefore appear that to apply for a second injunction before the first application is dealt with one way or another is an abuse of court’s process. In any case the application for injunction is brought under the wrong order and rule.
From the above therefore I decline to issue orders for temporary injunction. Applicant may be given a date on priority basis for inter parties hearing.
It is so ordered.
Dated at Kisii this 25th October 2004.
KABURU BAUNI
JUDGE
25/10/2004