[2000] KECA 229 (KLR)
The court found that the ex-parte mandatory injunction granted earlier had lapsed due to the absence of an application for its extension, as required by Order 39 rule 3(2) of the Civil Procedure Rules. Despite this, the court recognized that the subject matter of the dispute—a lorry—constituted a wasting asset,...
Source-derived case information.
- Citation
- [2000] KECA 229 (KLR)
- Parties
- Applicant: Dorothy K. Kwonyike t/a Luguyan Enterprises; Respondent: Victoria Commercial Bank Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 79 of ??
- Procedural Posture
- Stay Application / Ruling on Urgency
- Outcome
- Application certified as urgent; costs in the application.
- Judges
- AB Shah
- Legal Topics
- Injunctions, Stay of Execution, Ex Parte Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dorothy K. Kwonyike t/a Luguyan Enterprises
Applicant
Victoria Commercial Bank Limited
Respondent
Procedural Posture
Stay Application / Ruling on Urgency
Legal Issues
- 1 Whether the application for stay of execution and injunction pending appeal should be certified as urgent.
- 2 Whether the ex-parte mandatory injunction granted earlier was still in force or had lapsed.
- 3 Whether the subject matter, being a wasting asset, necessitated urgent intervention.
Ratio Decidendi
The court found that the ex-parte mandatory injunction granted earlier had lapsed due to the absence of an application for its extension, as required by Order 39 rule 3(2) of the Civil Procedure Rules. Despite this, the court recognized that the subject matter of the dispute—a lorry—constituted a wasting asset, which justified the need for urgent intervention to preserve it. The judge, therefore, certified the application for stay and injunction as urgent, allowing it to proceed on an expedited basis. The decision was based on the necessity to prevent further loss or deterioration of the asset pending the determination of the intended appeal.
Court Disposition
Application certified as urgent; costs in the application.
Orders
- The application is hereby certified as urgent.
- Costs to be in the application.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
COURT OF APPEAL AT NAIROBI
CIV APP 79 OF 00
DOROTHY K. KWONYIKE T/A LUGUYAN ENTERPRISES...................................APPLICANT
AND
VICTORIA COMMERCIAL BANK LIMITED.....................RESPONDENT
(An application for stay of execution and proceedings and injunction pending the lodging and hearing of an intended Appeal from the Ruling of the High Court of Kenya at Nairobi (Hon. Mr. Justice Kassanga Mulwa) given on 9th March, 2000 in
H.C.C.C. NO. 25 OF 2000)
*****************
RULING ON URGENCY
On 12th January, 2000 an ex-parte mandatory injunction was granted by commissioner Gacheche. That order almost decided the claim. She recorded no reasons to show how the non-granting of such an injunction would be defeated by delays. She overlooked the provision in order 39 rule 3(2) of the Civil Procedure Rules. So effectively the order expired on 26th February, 2000. There was no application for extension of the said ex-parte order. Mulwa, J nevertheless looked at that lapsed order as if it was in force. The subject-matter of the dispute is a wasting asset, namely a lorry. It becomes therefore necessary to try and preserve the same. Having heard both counsel I see no impediment in the way of certifying this application as urgent. I hereby certify the same as urgent. Costs in the application.
Dated and delivered at Nairobi this 4th day of March, 2000.
A.B. SHAH
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.