[2009] KEHC 2599 (KLR)
The court held that the objectors lacked locus standi to seek an injunction under Order 39 of the Civil Procedure Rules as they were not parties to the suit. The objection proceedings had already been determined, and the proper remedy for the objectors was to appeal or seek further relief from the Court of Appeal....
Source-derived case information.
- Citation
- [2009] KEHC 2599 (KLR)
- Parties
- Plaintiff: Awo Shariff Mohamed; Defendant: Abdulkadir Sharrif Abdirahim
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 329 of 2003
- Procedural Posture
- Civil Suit / Ruling on Application for Injunction at Execution Stage
- Outcome
- application dismissed with costs to the plaintiff
- Judges
- FI Koome
- Legal Topics
- Injunctions, Execution of Decrees, Legal Representatives, Objector Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Awo Shariff Mohamed
Plaintiff
Abdulkadir Sharrif Abdirahim
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Injunction at Execution Stage
Legal Issues
- 1 Whether objectors, who are not parties to the suit, can seek an injunction against execution under Order 39 of the Civil Procedure Rules.
- 2 Whether the application for injunction is merited given the existence of a limited grant of letters of administration for the deceased decree holder.
- 3 Whether the application has been overtaken by events due to the appointment of a legal representative.
Ratio Decidendi
The court held that the objectors lacked locus standi to seek an injunction under Order 39 of the Civil Procedure Rules as they were not parties to the suit. The objection proceedings had already been determined, and the proper remedy for the objectors was to appeal or seek further relief from the Court of Appeal. Additionally, the issuance of a limited grant of letters of administration for the deceased decree holder rendered the application for injunction moot and overtaken by events. The court, being functus officio, could not grant the orders sought. Consequently, the application was dismissed with costs to the plaintiff.
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The application dated 12/08/09 is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Suit 329 of 2003
AWO SHARIFF MOHAMED....………………..…....……………PLAINTIFF
VERSUS
ABDULKADIR SHARRIF ABDIRAHIM …………………………DEFENDANT
RULING
The objectors filed an objection against the execution of the decree in this matter. That objection was determined by an order of Lesiit J made on 17th July, 2009. ON 12th August, 2009, the objectors filed a chamber summons seeking inter alia for a temporary injunction to step the sale scheduled on 26th August, 2009 of defendant’s properties known as LR. No.209/13688 formerly known as No. Block 103/564), LR. No.11969/119, LR. No.11969/258, LR No.119/42 pending the appointment of a legal representative of the decree holder who is now deceased.
This application is premised on the grounds that the objector filed a notice of appeal to the Court of Appeal in respect of the ruling by Lesiit J, however they could not file an appeal because the decree holder died. As provided for Order 23 of the Civil Procedure Rules the suit may proceed but a legal representative of the deceased estate should be appointed. Counsel argued that he only came to know today when he was served with the replying affidavit that a limited grant of letters of administration in respect of the estate of the decree holder were granted in P&A No.1774 of 2009 on 17th august, 2009.
This application was opposed on the grounds that the objectors are not parties to this suit as envisaged under Order 39 of the Civil Procedure Rules. The plaintiff cannot be injuncted from executing an order by way of an order of injunction. There is a letter of administration so the application and the prayers sought have been overtaken by events.
I have carefully considered this application against the background that it is brought by the objectors. I am not persuaded that the objectors are the parties envisaged under the provisions of Order 39 who can bring an application for injunction against a plaintiff at an execution stage. Further, the objection was determined by Lesiit J thus the remedy for the objectors is to file an appeal or pursue further proceedings in from the Court of Appeal. This court is now funtus official of this matter.
Lastly, there is a limited grant in respect of the estate of the decree holder, thus the prayers sought by the objectors have been overtaken by events.
For the above reasons, I find the application dated 12/08/09 lacking in merit, it is hereby dismissed with costs to the plaintiff.
Ruling read and signed on 21/8/09.
M. K. KOOME
JUDGE