[2004] KECA 53 (KLR)
The Court found that the applicants had entered into a binding consent order regarding the payment of legal fees and had subsequently entered into a further compromise agreement with the respondent. The Court held that, in light of these agreements, the applicants had not demonstrated a prima facie case or raised...
Source-derived case information.
- Citation
- [2004] KECA 53 (KLR)
- Parties
- Applicant: Dorothy Nderi; Applicant: Edward Nderi Marine; Respondent: K.N. Ng’ang’a & Co. Advocates
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 306 of 2003
- Procedural Posture
- Civil Application / Application for Injunction Pending Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Interlocutory Injunctions, Consent Orders, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dorothy Nderi
Applicant
Edward Nderi Marine
Applicant
K.N. Ng’ang’a & Co. Advocates
Respondent
Procedural Posture
Civil Application / Application for Injunction Pending Appeal
Legal Issues
- 1 Whether the applicants have established a prima facie case to warrant the grant of an injunction pending appeal.
- 2 Whether the existence of a consent order and subsequent compromise agreement precludes the applicants from obtaining injunctive relief.
- 3 Whether the intended appeal raises arguable or serious questions of law.
Ratio Decidendi
The Court found that the applicants had entered into a binding consent order regarding the payment of legal fees and had subsequently entered into a further compromise agreement with the respondent. The Court held that, in light of these agreements, the applicants had not demonstrated a prima facie case or raised any serious legal issues warranting the grant of an injunction pending appeal. The intended appeal was deemed frivolous, and the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to the respondent.
- All past interim orders granted by the Court are set aside.
Full Case Text
Judgment text and source record
37 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: TUNOI, O’KUBASU, JJ.A & ONYANGO OTIENO, AG. J.A)
CIVIL APPLICATION NO. NAI. 306 OF 2003
1. DOROTHY NDERI
2. EDWARD NDERI MARINE …........…………………………………….APPLICANTS
AND
K.N. NG’ANG’A & Co. ADVOCATES……......…..…………...………RESPONDENT
(Appeal from the Ruling of the High Court of Kenya at Nairobi (Ondeyo, J.) dated 6. 11. 2003
in
H.C.C.C. NO. 494 OF 2001)
**************************
RULING OF THE COURT
This is an application under rule 5(2)(b) of the Court of Appeal Rules for orders, inter alia,;
1. That this Honourable Court be pleased to restrain the respondent, its agents and/or servants by way of an injunctionfrom alienating, selling, transferring and/or interfering withproperty known as L.R. No. 209/7484 Nairobi pending thehearing and determination of the intended appeal.
2. That the respondent be condemned to pay the costs herein.
The genesis of the application presented before us is the legal fees emanating from the Probate and Administration Cause No. 212 of 1996. Though the total fees payable by the applicants to the respondent had been agreed upon and consent orders entered into on 5th May, 2003, as to how the applicants would liquidate them the applicants have subsequently mounted a spirited effort to either set aside the consent order or to partially vary the orders which had been freely entered into in the superior court. The record shows that several applications to stall payment have been lodged in one way or the other in the superior court.
This application being one of them was lodged in Court on 12th November, 2003. However, on 14th November, 2003, the applicants entered into another Agreement with the respondent agreeing, inter alia, to: -
1. Postpone the auction date of L.R. Many ani 209/7484, Nairobi on thefollowing conditions: -
i) The Administrators (applicants) pay Shs. 2,500,000/=being part payment of the decretal amount.
ii) To pay Shs.280,000/= in respect of auctioneer’s charges.
iii) The balance of shs.2,500,000/= to be paid on or before 27th November, 2003.
In view of this compromise, can it be said in earnest that the applicants have shown, prima facie, that they have serious questions of law for submissions to the Court on the hearing of their intended appeal? We do not think so. Further, having listened to and considered the applicants’ legal or seemingly legal contentions we feel constrained to conclude that their intended appeal will, indeed, be frivolous.
In the circumstances, this application is without merit and is ordered dismissed with costs. As this application has been dismissed, past interim orders granted by this Court are set aside.
Dated and delivered at Nairobi this 12th day of March, 2004.
P.K. TUNOI
…………….
JUDGE OF APPEAL
E.O. O’KUBASU
…………………..
JUDGE OF APPEAL
J.W. ONYANGO OTIENO
…………………………….
AG. JUDGE OF APPEAL
I certify that this is a true copy of the
original.
DEPUTY REGISTRAR