[1997] KECA 112 (KLR)
The Court of Appeal found that the High Court erred by granting a final order of injunction that was neither pleaded nor argued by the parties. Such an order was improper and could not stand. The concession by the respondent's counsel that the appeal should succeed further supported the setting aside of the High...
Source-derived case information.
- Citation
- [1997] KECA 112 (KLR)
- Parties
- Appellant: The Church Commissioner of Mount Kenya; Appellant: C.P.K. Diocese of Mount Kenya; Respondent: Vicar in Charge & Parish Committee C.P.K. Kanunga Parish; Respondent: Loise Waringa Njuguna
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 258 of 1996
- Procedural Posture
- Civil Appeal / Appeal From Ruling of the High Court on Injunction Order
- Outcome
- Appeal allowed. High Court order set aside. Application for injunction dismissed with costs to appellants.
- Legal Topics
- Injunctions, Appeals Process, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Church Commissioner of Mount Kenya
Appellant
C.P.K. Diocese of Mount Kenya
Appellant
Vicar in Charge & Parish Committee C.P.K. Kanunga Parish
Respondent
Loise Waringa Njuguna
Respondent
Procedural Posture
Civil Appeal / Appeal From Ruling of the High Court on Injunction Order
Legal Issues
- 1 Whether the High Court erred in granting a final order of injunction that was neither pleaded nor argued.
- 2 Whether the costs of the appeal should follow the event or be borne by each party.
Ratio Decidendi
The Court of Appeal found that the High Court erred by granting a final order of injunction that was neither pleaded nor argued by the parties. Such an order was improper and could not stand. The concession by the respondent's counsel that the appeal should succeed further supported the setting aside of the High Court's order. On the issue of costs, the Court held that there was no sufficient reason to depart from the general rule that costs follow the event, and thus awarded costs to the appellants both in the appeal and in the court below.
Court Disposition
Appeal allowed. High Court order set aside. Application for injunction dismissed with costs to appellants.
Orders
- Both appeals are allowed with costs.
- The order of the superior court is set aside.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NAIROBI
Civil Appeal 258 of 1996
1. THE CHURCH COMMISSIONER OF MOUNT KENYA
2. C.P.K. DIOCESE OF MOUNT KENYA…………….................................……………APPELLANTS
AND
1. VICAR IN CHARGE & PARISHCOMMITTEE C.P.K. KANUNGA PARISH
2. LOISE WARINGA NJUGUNA……………………..................................……………RESPONDENT
(Appeal from the Ruling of the High Court of Kenya at Nairobi (Justice Hayanga) dated 22nd February, 1996
IN
H.C.C.C. NO. 2281 OF 1995)
***********************
RULING OF THE COURT
These are appeals against the Order of the superior court (Hayanga, J.) delivered on 22nd February, 1996. The main ground of appeal is that the learned judge made a final order of injunction which was neither pleaded nor argued. In the circumstances the order of the learned judge was in error. Mr. Nyangau for the respondent very properly concedes that the appeal must succeed but he prays that each party shall bear its own costs. We are, however, satisfied that the costs of the appeal must follow the event as there is no reason why the normal rule should be departed from.
Accordingly, both the appeals are allowed with costs and the order of the superior court is set aside. The application for injunction in the court below stands dismissed with costs.
Dated and delivered at Nairobi this 20th day of January, 1997.
A.M. AKIWUMI
…………………………
JUDGE OF APPEAL
P.K. TUNOI
…………………………
JUDGE OF APPEAL
A.A. LAKHA
……………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.