[2006] KECA 52 (KLR)
The Court found that the applicant failed to demonstrate an arguable appeal, which is a prerequisite for the grant of an injunction or stay under Rule 5(2)(b) of the Court of Appeal Rules. The Court was unconvinced by the applicant's submissions and, having found no arguable appeal, declined to consider whether the...
Source-derived case information.
- Citation
- [2006] KECA 52 (KLR)
- Parties
- Applicant: George Gikubu Mbuthia; Respondent: Dorsila Ayuma Shiraku; Respondent: L.M. Ombete t/a Ombete & Co. Advocates; Respondent: Benjamin Ayiro Shiraku; Respondent: Penina A.N Oloo t/a Penina Oloo & Co. Advocates; Respondent: Fozia Mohamed (Trustee for Fordosa Ahmed Abdille); Respondent: Hon. The Attorney General – representative of the Registrar of Titles, Nairobi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 62 of 2006
- Procedural Posture
- Injunction Application / Application for Injunction and Stay Pending Appeal Under Rule 5(2)(b) of Court of Appeal Rules
- Outcome
- application dismissed with costs
- Judges
- AM Githinji
- Legal Topics
- Interlocutory Injunctions, Stay of Execution, Appeals Process, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Gikubu Mbuthia
Applicant
Dorsila Ayuma Shiraku
Respondent
L.M. Ombete t/a Ombete & Co. Advocates
Respondent
Benjamin Ayiro Shiraku
Respondent
Penina A.N Oloo t/a Penina Oloo & Co. Advocates
Respondent
Fozia Mohamed (Trustee for Fordosa Ahmed Abdille)
Respondent
Hon. The Attorney General – representative of the Registrar of Titles, Nairobi
Respondent
Procedural Posture
Injunction Application / Application for Injunction and Stay Pending Appeal Under Rule 5(2)(b) of Court of Appeal Rules
Legal Issues
- 1 Whether the applicant has demonstrated an arguable appeal to warrant the grant of an injunction or stay of execution.
- 2 Whether the refusal to grant the orders sought would render the intended appeal nugatory.
Ratio Decidendi
The Court found that the applicant failed to demonstrate an arguable appeal, which is a prerequisite for the grant of an injunction or stay under Rule 5(2)(b) of the Court of Appeal Rules. The Court was unconvinced by the applicant's submissions and, having found no arguable appeal, declined to consider whether the appeal would be rendered nugatory. Consequently, the application for injunctive relief and stay was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The applicant's notice of motion dated 3rd March, 2006 is dismissed with costs.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NAIROBI
Civ Appli 62 of 2006
GEORGE GIKUBU MBUTHIA………….....................……………………..APPLICANT
AND
DORSILA AYUMA SHIRAKU…………...….................…………....1ST RESPONDENT
L.M. OMBETE t/a Ombete & Co. Advocates….…..............…..2ND RESPONDENT
BENJAMIN AYIRO SHIRAKU….….....................………….………3RD RESPONDENT
PENINA A.N OLOO t/a Penina Oloo& Co. Advocates...…...…4TH RESPONDENT
FOZIA MOHAMED (Trustee forFordosa Ahmed Abdille)…....5TH RESPONDENT
HON. THE ATTORNEY GENERAL– representativeof ..
THE REGISTRAR OF TITLES, NAIROBI..…….............................…6TH RESPONDENT
(Application for injunction under Rule 5(2)(b) of Court of Appeal Rules from the judgment of the High Court of Kenya at Nairobi (Ransley, J) dated 10th February, 2006
in
H.C.C.C. NO. 2169 OF 2000)
*************
RULING OF THE COURT
This is one of those endless applications by Mr. Mbuthia, the applicant herein. He applies to the Court under Rule 5(2)(b) of the Rules of the Court for various types of injunctive orders, for a stay of execution, for stay of further proceedings in the High Court and for an order.
“------------ commanding the officer-in-charge, Pangani Police station to remove the 5th Respondent’s tenants, traders construction workers from their continued illegal occupation and construction on L.R. 36/1/985 Galole Road, Eastleigh, Nairobi”
Why the applicant would want us to make orders affecting other parties who are not the subject of the litigation such as the OCS, Pangani, the tenants, traders and so on, whom we have not even heard, is a matter wholly beyond our comprehension. The applicant, as a determined and frequent litigant in these courts is of course aware of the principles which guides the court in granting the kind of orders he seeks from us. He has to show that he has an arguable appeal, i.e. an appeal which is not frivolous, and that if the court refused to grant him the orders he seeks and his appeal or intended appeal were to eventually succeed, that success would have been rendered nugatory by the refusal to grant the order.
On the first head, surface it to say that having listened to the applicant’s submissions before us, we remain wholly unconvinced that he has an arguable appeal and we think we ought not to go into the details of the matter other than saying we remain unconvinced. That being the position we have taken, it is not necessary for us to deal with the issue of the appeal or intended appeal being rendered nugatory.
The applicant’s notice of motion dated 3rd March, 2006 and lodged in this Court on 6th March, 2006 must accordingly fail and our order is and shall be that the motion is dismissed with costs.
DATED and DELIVERED at NAIROBI this 10th Day of November, 2006.
R.S.C. OMOLO
………………………………..
JUDGE OF APPEAL
P.K. TUNOI
………………………………….
JUDGE OF APPEAL
E.M. GITHINJI
………………………………….
JUDGE OF APPEAL
I certify that this is
a true copy of the original.
DEPUTY REGISTRAR.