[1997] KECA 342 (KLR)
The Court found that the intended appeal was not frivolous and, as conceded by the respondent's counsel, that unless the injunction was granted, the intended appeal would be rendered nugatory. Therefore, the Court exercised its discretion to grant the injunction as prayed, pending the determination of the intended...
Source-derived case information.
- Citation
- [1997] KECA 342 (KLR)
- Parties
- Applicant: Council for Human Ecology; Respondent: Captain Jimmy Mutinda
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 251 of 1997
- Procedural Posture
- Injunction Application / Application for Injunction Pending Appeal
- Outcome
- Application for injunction granted as prayed. Costs of the application to abide the appeal.
- Legal Topics
- Interlocutory Injunctions, Preservation of Property, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Council for Human Ecology
Applicant
Captain Jimmy Mutinda
Respondent
Procedural Posture
Injunction Application / Application for Injunction Pending Appeal
Legal Issues
- 1 Whether an injunction should be granted to restrain the respondent from damaging or entering the applicant's property pending appeal.
- 2 Whether the intended appeal would be rendered nugatory if the injunction is not granted.
Ratio Decidendi
The Court found that the intended appeal was not frivolous and, as conceded by the respondent's counsel, that unless the injunction was granted, the intended appeal would be rendered nugatory. Therefore, the Court exercised its discretion to grant the injunction as prayed, pending the determination of the intended appeal.
Court Disposition
Application for injunction granted as prayed. Costs of the application to abide the appeal.
Orders
- An injunction is granted restraining the respondent, his servants and/or agents from damaging or entering the applicant's property Title No. MAKUENI/MASONGALENI/177 (Plot No. 290 Masongaleni Settlement) pending the determination of the intended appeal.
- Costs of the application to abide the outcome of the appeal.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OMOLO, TUNOI & LAKHA, JJ.A.)
CIVIL APPLICATION NO. NAI. 251 OF 1997 (109/97UR)
BETWEEN
COUNCIL FOR HUMAN ECOLOGY..........................APPLICANT
AND
CAPTAIN JIMMY MUTINDA................................RESPONDENT
(Application for injunction pending an appeal from a Ruling of the
High Court of Kenya at Nairobi (Justice Msagha -Mbogholi)
dated 19th September, 1997
in
H.C.C.C. NO. 2017 OF 1996) *******************
RULING OF THE COURT
This is an application for injunction seeking to restrain the respondent his servants and/or agents from damaging any of its property Title No. MAKUENI/MASONGALENI/177 (Known as the Plot No. 290 Masongaleni Settlement and restraining from entering into the said property pending the determination for the intended appeal.
Having heard counsel of both the parties, we are satisfied that the intended appeal is not frivolous as conceded by Mr. Sitima that unless the injunction is granted the intended appeal will be rendered nugatory.
In the result, the application for injunction is granted as prayed with costs of the application to abide the appeal.
Dated and delivered at Nairobi this 30th day of September, 1997.
R.S.C. OMOLO
............................
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