[1995] KECA 104 (KLR)
The Court of Appeal found that Stardust Investment Limited, a key respondent, had withdrawn its opposition to the application by indicating it was no longer interested in the matter and was not represented at the hearing. The court interpreted this as non-opposition to the orders sought. Consequently, the court...
Source-derived case information.
- Citation
- [1995] KECA 104 (KLR)
- Parties
- Applicant: Felix Nyauchi; Applicant: Robert Njenga Mwaura; Applicant: Owen Koimburi; Applicant: Gibson Githumbi; Applicant: Brooke Bond Mombasa Ltd; Respondent: The Nairobi City Council; Respondent: The Commissioner of Lands; Respondent: Stardust Investment Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 262 of 1994
- Procedural Posture
- Stay Application / Application for Stay and Injunction Pending Appeal
- Outcome
- Application for stay and injunction pending appeal allowed.
- Legal Topics
- Stay of Execution, Injunction Pending Appeal, Dismissal of Suit, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Felix Nyauchi
Applicant
Robert Njenga Mwaura
Applicant
Owen Koimburi
Applicant
Gibson Githumbi
Applicant
Brooke Bond Mombasa Ltd
Applicant
The Nairobi City Council
Respondent
The Commissioner of Lands
Respondent
Stardust Investment Limited
Respondent
Procedural Posture
Stay Application / Application for Stay and Injunction Pending Appeal
Legal Issues
- 1 Whether the applicants are entitled to a stay of execution pending appeal.
- 2 Whether an injunction pending appeal should be granted.
- 3 Whether Stardust Investment Limited's withdrawal affects the opposition to the application.
Ratio Decidendi
The Court of Appeal found that Stardust Investment Limited, a key respondent, had withdrawn its opposition to the application by indicating it was no longer interested in the matter and was not represented at the hearing. The court interpreted this as non-opposition to the orders sought. Consequently, the court allowed the application for stay and injunction in the terms prayed in paragraph two of the notice of motion. The court further ordered that the costs of the application be awarded to the applicants and to the Nairobi City Council, with such costs to be paid by Stardust Investment Limited. The court's decision was based on the withdrawal of opposition and the absence of any other...
Court Disposition
Application for stay and injunction pending appeal allowed.
Orders
- Application allowed in the terms prayed in paragraph two of the notice of motion.
- Costs of the application awarded to the applicants and to the Nairobi City Council, to be paid by Stardust Investment Limited.
Full Case Text
Judgment text and source record
49 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OMOLO, AKIWUMI & TUNOI, JJ.A.)
CIVIL APPLICATION NO. NAI. 262 OF 1994
IN THE MATTER OF AN INTENDED APPEAL
BETWEEN
FELIX NYAUCHI ................................................................................... 1ST APPLICANT
VERSUS
THE NAIROBI CITY COUNCIL ........................................................... 1ST RESPONDENT
THE COMMISSIONER OF LANDS .................................................... 2ND RESPONDENT
STARDUST INVESTMENT LIMITED ................................................ 3RD RESPONDENT
CONSOLIDATED WITH
ROBERT NJENGA MWAURA ............................................................. 2ND APPLICANT
OWEN KOIMBURI ................................................................................ 3RD APPLICANT
GIBSON GITHUMBI .............................................................................. 4TH APPLICANT
.
VERSUS
THE NAIROBI CITY COUNCIL ........................................................... 1ST RESPONDENT
THE COMMISSIONER OF LANDS ..................................................... 2ND RESPONDENT
STARDUST INVESTMENT LIMITED .................................................. 3RD RESPONDENT
AND
BROOKE BOND MOMBASA LTD ........................................................ 5TH APPLICANT
VERSUS
THE NAIROBI CITY COUNCIL ............................................................. 1ST RESPONDENT
THE COMMISSIONER OF LANDS ........................................................ 2ND RESPONDENT
STARDUST INVESTMENT LIMITED ..................................................... 3RD RESPONDENT
(An application for stay pending appeal and injunction pending
appeal from the Ruling passed by the High Court of Kenya
at Nairobi (Justice Bosire) dated 14th December, 1994
in
H.C.C.C. NO. 2666 OF 1994, C.C. NO. 2724 OF 1994
AND CIVIL SUIT NO. 3293 OF 1994)
**********************
RULING OF THE COURT
The application by way of notice of motion sought from this court an order of stay against the orders made by Bosire, J. on the 14th December, 1994, by which order the learned judge had dismissed the suits filed by the applicants. We are also asked to grant an injunction pending the hearing of the appeal. When this matter first came before us on the 23rd December, 1994, we made temporary orders on the terms sought.
Stardust Investments Limited, through one of its directors, has written a letter to the court and in that letter it indicates that it is no longer interested in the matter. It is not represented before us to-day. We take its letter to mean that it no longer opposes the application, and that being our view, we allow this application in the terms prayed in paragraph two of the notice of motion. We award the costs of the application to the applicants and to the City Council of Nairobi, such costs to be paid by Stardust Investments Ltd. We so order.
Dated and delivered at Nairobi this 7th day of July, 1995.
R.S.C. OMOLO
.................
JUDGE OF APPEAL
A.M. AKIWUMI
.................
JUDGE OF APPEAL
P.K. TUNOI
..................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR