[2017] KEHC 8956 (KLR)
The court held that the application was fatally defective because it sought an injunction under provisions that only allow for stay of execution, not injunctions, after judgment. The court further found that even if the application were treated as one for stay of execution, the appellant had not satisfied the...
Source-derived case information.
- Citation
- [2017] KEHC 8956 (KLR)
- Parties
- Appellant: Fahari Wholesalers & Retailers; Respondent: Henry Kidula T/A Nyaluoyo Auctioneers
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 48 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application for Injunction Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Interlocutory Injunctions, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fahari Wholesalers & Retailers
Appellant
Henry Kidula T/A Nyaluoyo Auctioneers
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application for Injunction Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a temporary injunction restraining the respondent from attaching property pending appeal.
- 2 Whether the application meets the requirements for stay of execution under Order 42 Rule 6 of the Civil Procedure Rules.
- 3 Whether an injunction can be granted post-judgment in the circumstances.
Ratio Decidendi
The court held that the application was fatally defective because it sought an injunction under provisions that only allow for stay of execution, not injunctions, after judgment. The court further found that even if the application were treated as one for stay of execution, the appellant had not satisfied the conditions required under Order 42 Rule 6 of the Civil Procedure Rules. The distinction between an injunction and a stay of execution was emphasized, and the court concluded that the appellant was not entitled to the relief sought. Consequently, the application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 24.04.2017 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CIVIL DIVISION
CIVIL APPEAL NO. 48 OF 2017
FAHARI WHOLSESALERS & RETAILERS ……....…………….PLAINTIFFS
AND
HENRY KIDULA
T/A NYALUOYO AUCTIONEERS………………………………DEFENDANTS
R U L I N G
Introduction
1. The application for determination is the Notice of Motion dated 24. 04. 2017 brought under order 42 Rule 6 of Civil Procedure Rules. The application was certified urgent and a temporary injunction issued to the appellant restraining the respondent from attaching his property. The appellant now wants a temporary order of injunction restraining the respondents from attaching his property pending the hearing and determination of his appeal.
2. The application is based on the grounds on the face thereof and supported by the appellant’s affidavit wherein he reiterates the ground in support of the application.
3. The application is opposed. There is a replying affidavit by Henry Kidula the 1st respondent and co-administrator of the estate of Francis Kidula Asiligwa. He explains therein the tenancy of Edward S. M. Juma in the suit premises at a monthly rent of Kshs.15,000/= which he has defaulted in paying and which led to the distress for rent. He states that Edward entered into the tenancy agreement in his personal capacity and not as a director of the Appellant Company. He contends that the application does not meet the legal requisites for the grant of orders of injunction.
Determination.
4. The application is brought under order 42 Rule 6 of the Civil Procedure Rules Rule 6(1) provides that no appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except as the court appealed from may order for sufficient cause .
5. Before proceeding further, I note from the reading of the said order, Rule 6 deals with stay of execution and not injunction which the appellant is seeking in his application.
6. Secondly, I find that even if the applicant was seeking a stay of execution, his application could not succeed for failure to comply with the conditions set out under Rule 6 of Order 42 of the Civil Procedure Rules.
7. I find the appellant application fatally defective because the orders being sought for are not in line with the provisions cited to file the same. There is a big difference between an application for injunction and one for stay of execution. An injunction cannot be issued after a judgment. What issues is stay of execution, but as already noted above, the applicant has not met the conditions for grant of stay of execution order.
8. I therefore find the application to have no merit and the same is dismissed with cots to the respondent.
It is so ordered
Ruling delivered, read and signed in open court at Kakamega this 30th day of May, 2017
RUTH N. SITATI
JUDGE
In the presence of;-
Mr. Munyendo (absent)……………………………...for Appellant
Miss Khateshi for Abira …………………………For respondent
Polycap Mukabwa…………………………………….court Assistant