[1997] KECA 235 (KLR)
The Court found that while there may be arguable points for appeal, the applicant did not seek the equitable remedy of specific performance in its plaint. Therefore, the Court held that the appeal, if successful, would not be rendered nugatory because damages would be a sufficient remedy in the circumstances. As a...
Source-derived case information.
- Citation
- [1997] KECA 235 (KLR)
- Parties
- Applicant: Farmers Industries Limited; Respondent: Kenya Commercial Finance Co. Ltd; Respondent: P. G. Waweru t/a Ideal Auctioneers
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 81 of 1997
- Procedural Posture
- Injunction Application / Application for Injunction Pending Intended Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Interlocutory Injunctions, Appeal Stay, Equitable Remedies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Farmers Industries Limited
Applicant
Kenya Commercial Finance Co. Ltd
Respondent
P. G. Waweru t/a Ideal Auctioneers
Respondent
Procedural Posture
Injunction Application / Application for Injunction Pending Intended Appeal
Legal Issues
- 1 Whether the applicant is entitled to an injunction pending appeal.
- 2 Whether damages would be an adequate remedy if the appeal succeeds.
Ratio Decidendi
The Court found that while there may be arguable points for appeal, the applicant did not seek the equitable remedy of specific performance in its plaint. Therefore, the Court held that the appeal, if successful, would not be rendered nugatory because damages would be a sufficient remedy in the circumstances. As a result, the application for injunction pending appeal was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for injunction is dismissed with costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI (CORAM: AKIWUMI, PALL, JJ.A. & BOSIRE, AG.J.A.) CIVIL APPLICATION NO. NAI 81 OF 1997 (UR. 36/97)BETWEEN
FARMERS INDUSTRIES LIMITED ........................ APPLICANT AND 1. KENYA COMMERCIAL FINANCE CO. LTD 2. P. G. WAWERU T/A IDEAL AUCTIONEERS ............ RESPONDENTS(An application for Injunction pending intended Appeal from the Ruling of the High Court of Kenya at Nairobi (Justice Mbito) dated 13th March, 1997 in H.C.C.C. NO. 23 OF 1997) **********RULING OF THE COURT
The application is for injunction on the grounds that there are arguable points to be canvassed at the appeal and that the appeal would be nugatory if the appeal succeeds. We see some merit in the first ground, but since the applicant did not in his plaint seek the equitable relief of specific performance, it would seem to us that it can not be said that the appeal if successful, would be nugatory, damages would be sufficient remedy in the particular circumstances of this matter.
The order that therefore commands itself to us, is to dismiss this application with costs. It is so ordered.
Dated and delivered at Nairobi this 28th day of April, 1997.
A. M. AKIWUMI
...............
JUDGE OF APPEAL
G. S. PALL
................
JUDGE OF APPEALS. E. O. BOSIRE
................
AG. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.