[1997] KECA 250 (KLR)
The court held that the applicant failed to demonstrate that the intended appeal would be rendered nugatory if the injunction was not granted. Since the contract in question provided for its termination and any damages suffered by the applicant could be easily assessed, the remedy of damages was adequate. Therefore,...
Source-derived case information.
- Citation
- [1997] KECA 250 (KLR)
- Parties
- Applicant: Ezra Odondi Opar; Respondent: Total Kenya Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 284 of 1997
- Procedural Posture
- Civil Application / Application for Temporary Injunction Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- AM Akiwumi, GS Pall
- Legal Topics
- Interlocutory Injunctions, Contract Termination, Damages Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ezra Odondi Opar
Applicant
Total Kenya Limited
Respondent
Procedural Posture
Civil Application / Application for Temporary Injunction Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a temporary injunction restraining the respondent from retaking possession of the service station pending appeal.
- 2 Whether failure to grant the injunction would render the intended appeal nugatory.
Ratio Decidendi
The court held that the applicant failed to demonstrate that the intended appeal would be rendered nugatory if the injunction was not granted. Since the contract in question provided for its termination and any damages suffered by the applicant could be easily assessed, the remedy of damages was adequate. Therefore, the threshold for granting a temporary injunction pending appeal was not met, and the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for a temporary injunction is dismissed with costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI (CORAM: OMOLO, AKIWUMI & PALL, JJ.A.) CIVIL APPLICATION NO. NAI. 284 OF 1997 (UR.120/97)
BETWEEN
EZRA ODONDI OPAR ........................................APPLICANT AND TOTAL KENYA LIMITED ....................................RESPONDENT
(Application for an order of a temporary injunction to restrain the Respondent from retaking possession of the Kendu Bay Total Service Station the subject matter of the Applicant's intended Appeal and to Restrain the Respondent from interfering with the Applicant's possession of and business in the said station pending the hearing and determination of the Applicant's Appeal from the ruling and order of the High Court of Kenya at Kisumu (Justice Wambilyangah) dated 15th October, 1997
in H.C.C.C. NO. 93 OF 1997) ************
RULING OF THE COURT
The application fails on merit as it has not been shown as it must in an application of this sort, that if it is not granted the applicant's intended appeal if successful would be nugatory. The dispute between the parties arises out of the applicant's allegation that the respondent has wrongfully terminated his contract to run the petrol station of the respondent. This contract provides which is for a stated period provides for its termination and the damages which the applicant will suffer if it is shown that the respondent had wrongfully terminated the contract, can be easily assessed.
In the result the application must be dismissed with costs.
It is so ordered.
Dated and delivered at Nairobi this 10th day of November, 1997.
R. S. C. OMOLO
.................
JUDGE OF APPEAL
A. M. AKIWUMI
.................
JUDGE OF APPEAL
G. S. PALL
.................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.