[2010] KEHC 657 (KLR)
The court declined to grant an interlocutory injunction pending appeal because it had already found the applicant's suit to be an abuse of the process of the court. As such, any appeal arising from the dismissal of the chamber summons would be frivolous, and it would not be appropriate to preserve the subject matter...
Source-derived case information.
- Citation
- [2010] KEHC 657 (KLR)
- Parties
- Applicant: Bishop Paul Yowakim; Respondent: Itoga Investments Holding Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 425 of 2010
- Procedural Posture
- Civil Suit / Ruling on Oral Application for Interlocutory Injunction Pending Appeal
- Outcome
- application for interlocutory injunction pending appeal dismissed
- Judges
- GG Okwengu
- Legal Topics
- Interlocutory Injunctions, Abuse of Process, Preservation of Subject Matter
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bishop Paul Yowakim
Applicant
Itoga Investments Holding Ltd
Respondent
Procedural Posture
Civil Suit / Ruling on Oral Application for Interlocutory Injunction Pending Appeal
Legal Issues
- 1 Whether the court should grant an interlocutory injunction pending appeal after dismissing the applicant's chamber summons.
- 2 Whether the intended appeal is frivolous or has merit to warrant preservation of the subject matter.
- 3 Whether the applicant should have sought the injunction from the Court of Appeal instead.
Ratio Decidendi
The court declined to grant an interlocutory injunction pending appeal because it had already found the applicant's suit to be an abuse of the process of the court. As such, any appeal arising from the dismissal of the chamber summons would be frivolous, and it would not be appropriate to preserve the subject matter through an injunction. The court also noted that the applicant had the option to seek such an order from the Court of Appeal but had not done so. Therefore, the failure to preserve the subject matter, if it renders the appeal nugatory, is attributable to the applicant's own inaction.
Court Disposition
application for interlocutory injunction pending appeal dismissed
Orders
- The oral application for an order of interlocutory injunction pending appeal is declined.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
LAND AND ENVIRONMENTAL LAW DIVISION
CIVIL SUIT (ELC) NO.425 OF 2010
BISHOP PAUL YOWAKIM……………………………APPLICANT
VERSUS
ITOGA INVESTMENTS HOLDING LTD………... RESPONDENT
R U L I N G
1. On 29th October, 2010, I dismissed a chamber summons dated 17th September, 2010 in which the plaintiff/applicant sought an order of interlocutory injunction pending the hearing of the suit that he had filed against the defendant/respondent. Counsel for the applicant then made an oral application for an order of interlocutory injunction pending the hearing of an appeal which the applicant intended to file against my ruling.
2. In support of his oral application counsel for the applicant relied on two authorities i.e.
·Erinford Properties Ltd vsChesireCountyCouncil [1974] 2All ER 448.
·Madhupaper International Ltd vs Kerr [1985] KLR 840.
3. Counsel urged the court that given the history of the matter before it, it was necessary for the court to give the order of interlocutory injunction in order to preserve the subject matter of litigation so that the intended appeal is not rendered nugatory.
4. Counsel for the respondent objected to the application contending that there was no basis for the court to issue the orders sought.
5. I have carefully considered the application and also perused the two authorities which were cited. I do appreciate that notwithstanding the dismissal of the chamber summons dated 17th September, 2010, I do have jurisdiction to grant the order sought of interlocutory injunction pending appeal against the dismissal of the applicant’s chamber summons. As stated in the authorities referred to, the purpose of granting such an order would be to prevent the decision of the Court of Appeal from being rendered nugatory, should it allow the appeal.
6. Nonetheless, this court can only grant such an application where it is of the opinion that the intended appeal is not frivolous. In this case, having found that the applicant’s suit is an abuse of the process of the court, it will not be appropriate to anchor an order of interlocutory injunction pending appeal upon such a suit, because if the suit is an abuse of the process of the court, the appeal can only be frivolous. Moreover, this court notes that the applicant had the opportunity to pursue an order of interlocutory injunction pending appeal in the Court of Appeal. That option has however not been pursued. If the applicant’s appeal is rendered nugatory by the failure of this court to grant the order of interlocutory injunction pending appeal, the applicant will only have himself to blame.
7. For the above reasons, I decline to issue an order of temporary injunction pending appeal.
Dated and delivered this 2nd day of November, 2010
H. M. OKWENGU
JUDGE
In the presence of: -
Mureithi for the applicant
Ms Kinyua for the respondent
B. Kosgei - Court clerk