[2012] KEHC 1062 (KLR)
The court found that the injunction order made by Osiemo J. had been spent both by operation of law and as a result of the court's ruling on 20th April, 2010. Furthermore, the defendant had filed a notice of appeal against the ruling of 20th April, 2010, which, under Order 45 Rule 1(1)(b) of the Civil Procedure...
Source-derived case information.
- Citation
- [2012] KEHC 1062 (KLR)
- Parties
- Appellant: Genald Muturi Maina; Respondent: Mavji Ramji Patel
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 586 of 2005
- Procedural Posture
- Civil Case / Ruling on Notice of Motion to Discharge, Vary or Set Aside Injunction and Review Prior Ruling
- Outcome
- application dismissed with costs
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Injunctions, Review of Orders, Appeal and Review, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Genald Muturi Maina
Appellant
Mavji Ramji Patel
Respondent
Procedural Posture
Civil Case / Ruling on Notice of Motion to Discharge, Vary or Set Aside Injunction and Review Prior Ruling
Legal Issues
- 1 Whether the injunction order made by Osiemo J. should be discharged, varied, or set aside.
- 2 Whether the ruling made by the court on 20th April, 2010 should be reviewed, varied, or set aside.
- 3 Whether the right to review is available when a notice of appeal has been filed.
Ratio Decidendi
The court found that the injunction order made by Osiemo J. had been spent both by operation of law and as a result of the court's ruling on 20th April, 2010. Furthermore, the defendant had filed a notice of appeal against the ruling of 20th April, 2010, which, under Order 45 Rule 1(1)(b) of the Civil Procedure Rules, precluded him from seeking a review of the same order. The court concluded that the application was an attempt by the defendant to avoid his obligations and commitments arising from the previous rulings. As such, the application lacked merit and was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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GENALD MUTURI MAINA................…………………….APPELLANT
VERSUS
MAVJI RAMJI PATEL………………………………...RESPONDENT
RULING
This is an application by way of Notice of Motion filed by the defendant for the two substantive orders.
It seeks to discharge, vary or set aside the order for an injunction made by Osiemo J. On 17th May, 2005. An order is also sought to review, vary or set aside the ruling made by this court on 20th April, 2010.
The application is premised on the provisions of Section 3A of the Civil Procedure Act and Orders 40 Rule 7 and 50 Rules 1 and 15 of the Civil Procedure Rules. There are grounds set out on the face of the application alongside an affidavit sworn by the defendant.
The application is opposed, and a replying affidavit has been sworn by one Washington Muchiri Muturi. Both learned counsel have also filed written submissions.
The injunction order made by Osiemo J. whether ex-parte or by consent has now been spent, by operation of the law and also as a result of the ruling of 20th April, 2010 from which an order capable of execution can be extracted.
Following the ruling by this court on 20th April, 2010, the Defendant filed a Notice of Appeal dated 23rd April, 2010. That Notice has not been withdrawn. Where a party has preferred an appeal, the right to review any order is compromised. Order 45 Rule 1 (1) (b) of the Civil Procedure Rules is clear in that regard.
I note also that, following the ruling of 20th April, 2010 aforesaid, no order was extracted and if one was, the same has not been annexed to the application before me.
My reading of the record resting with the application before me is that, the defendant is bent on avoiding an obvious eventuality. He must come to terms with his commitment and obligations.
The application lacks merit. It is therefore dismissed with costs.
Orders accordingly.
Signed dated and delivered in open court this31stday ofOctober,2012.
A.MBOGHOLI MSAGHA
JUDGE
Mr. Marigi holding brief for Oyugi for Plaintiff/Respondent.
No appearance for the applicant.