[2018] KEHC 2432 (KLR)
The court found that the applicant had not demonstrated that the respondent would be unable to refund any monies deducted should the appeal succeed. The respondent, being a Teachers SACCO, was deemed financially capable of repaying the sums in question. The applicant failed to establish the likelihood of irreparable...
Source-derived case information.
- Citation
- [2018] KEHC 2432 (KLR)
- Parties
- Appellant: Catherine Kutete Luseno; Respondent: Bungoma Teachers SACCO Ltd
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 9 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Application for Temporary Injunction Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- SN Riechi
- Legal Topics
- Temporary Injunctions, Stay of Execution, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Catherine Kutete Luseno
Appellant
Bungoma Teachers SACCO Ltd
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 restraining the respondent from making further deductions from her salary pending the hearing and determination of the appeal.
- 2 Whether the applicant has satisfied the legal requirements for the grant of a temporary injunction.
Ratio Decidendi
The court found that the applicant had not demonstrated that the respondent would be unable to refund any monies deducted should the appeal succeed. The respondent, being a Teachers SACCO, was deemed financially capable of repaying the sums in question. The applicant failed to establish the likelihood of irreparable harm or that the balance of convenience favoured the grant of a temporary injunction. Consequently, the application for a temporary injunction and stay of execution was dismissed for lack of merit.
Court Disposition
application dismissed with costs
Orders
- The application for a temporary injunction is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA.
CIVIL APPEAL NO. 9 OF 2017.
CATHERINE KUTETE LUSENO...........................................APPELLANT
VERSUS.
BUNGOMA TEACHERS SACCO LTD..............................RESPONDENT
RULING.
This is applicant’s application dated 16. 10. 2017 under Order 40 rule 1,2,3, Order 51 rule 1 of Civil Procedure Rules. Section 1A, A and 3A of the Civil Procedure Act seeking;
a) THATa temporary injunction do issue restraining the Respondent from making any further deductions from the applicant’s salary pending the hearing and determination of this application.
b) THAT a temporary injunction do issue restraining the Respondent from making any further deductions from the applicant’s salary pending the hearing and determination of this appeal.
c) THAT the order be served upon the Teachers Service Commission applicant’s employers for the purpose of compliance.
The grounds for the application is that the applicant was a claimant in
Co-op Tribunal Cause No. 9/2008 where she sued the Respondent for a refund of Kshs.720,000/= and other deductions made from her salary.
The tribunal by Judgment dated 21. 3.3017 dismissed her claim and made a finding that she took a loan from the Respondent of Kshs.120,000/=. Aggrieved by that finding she presented this appeal. She now prays for the stay of execution pending the hearing of the appeal.
Mr. Kraido for the Respondent filed grounds of opposition. He urged the Court not to grant the prayers sought as the applicant has not satisfied the grounds of a temporary injunction and that she has not shown that Respondent has received excess money.
I have considered the application, grounds in support and opposition to the application. The applicant has filed this appeal which is due for hearing. It has not been demonstrated that if the Respondent recovered the money they will be unable to repay it if this appeal succeeds. The Respondent Bungoma Teachers SACCO Society Ltd being a Teachers Sacco will be able to refund any money deducted if the appeal application succeeds.
I therefore find no merit in this application and dismiss the same with costs.
Dated and Delivered at Bungoma this 7th day of November, 2018.
S.N. RIECHI
JUDGE