[2004] KEHC 2220 (KLR)
The court found that the rights of the parties had not been finally determined and that the appellant, as the registered proprietor of the suit land, was entitled to interim protection of his property pending the outcome of the appeal. Recognizing the special circumstances of the case, including the familial...
Source-derived case information.
- Citation
- [2004] KEHC 2220 (KLR)
- Parties
- Appellant: Hussein Haji Issa; Respondent: Anwarali K. Ismail; Respondent: Abdul Azim Anwar
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 953 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Stay and Injunction Pending Appeal
- Outcome
- Interim orders granted in part; income from suit property to be deposited in joint interest-earning account pending appeal.
- Legal Topics
- Stay of Execution, Injunctions, Pecuniary Jurisdiction, Proprietary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hussein Haji Issa
Appellant
Anwarali K. Ismail
Respondent
Abdul Azim Anwar
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay and Injunction Pending Appeal
Legal Issues
- 1 Whether a stay of execution should be granted pending appeal.
- 2 Whether an injunction restraining the respondents from collecting rent or interfering with the tenant should issue pending appeal.
- 3 Whether the appellant, as registered proprietor, is entitled to interim protection of the suit property.
Ratio Decidendi
The court found that the rights of the parties had not been finally determined and that the appellant, as the registered proprietor of the suit land, was entitled to interim protection of his property pending the outcome of the appeal. Recognizing the special circumstances of the case, including the familial relationship between the parties and the need to balance competing interests, the court exercised its discretion to direct that all income from the suit property be deposited in an interest-earning account in the joint names of the advocates for the parties, pending the hearing and final determination of the appeal. This measure was deemed necessary to preserve the subject matter of...
Court Disposition
Interim orders granted in part; income from suit property to be deposited in joint interest-earning account pending appeal.
Orders
- All income from the suit property shall be deposited in an interest earning account in the joint names of the advocates on record for the parties in a reputable bank, pending the hearing and final determination of the appeal.
- Costs of the application will abide the outcome of the appeal.
Full Case Text
Judgment text and source record
49 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO 953 OF 2003
HUSSEIN HAJI ISSA …………………...………………… APPELLANT
VERSUS
ANWARALI K. ISMAIL ……………..…………….. 1ST RESPONDENT
ABDUL AZIM ANWAR …………………………… 2ND RESPONDENT
RULING
This is an application under Order XXXIX Rules 1, 2 and 3 (1) and Order
XLI Rule 4 (1) of the Civil Procedure Rules (hereinafter referred to as “the
Rules”) and Section 3 A of the Civil Procedure Act (Cap 21). In it the
Appellant seeks the following orders:
“2. That a stay of execution do issue against the orders given on
3rd December, 2003 in Narok SRMCC No 70 of 2003
(hereinafter referred to as “the original suit”), until the
hearing and determination of the appeal.
3. That an order of injunction do issue restraining the
defendants by themselves, their agents and servants from
collecting rent in plot number 11 Narok Township
(hereinafter referred to as “the suit land”) or in any other way
interfere with the tenant in the sa id plot, until determination
of this appeal.”
The matters leading to the application are not in dispute. The appellant is
the proprietor of the suit land. He was involved in a dispute over the same
with the Respondents who were collecting rent in respect of stalls erected
thereon. However, before his case could be tried, it was struck out on the
grounds that the lower court in which it was filed had no pecuniary
jurisdiction to hear it and that the verifying affidavit accompanying it was
defective. The Appellant was aggrieved by the decision of the lower court
and has appealed to this court seeking to have the decision of the lower court
reversed. In the interim, he seeks the orders alluded to earlier.
It is obvious that the rights of the parties have not finally been determined.
Although at this stage I am not entitled to decide the appeal on its merits, I
think that the Appellant who is the registered proprietor of the suit land is
entitled to the protection of this court to secure his property until the rights
of the parties have been finally determined. The fact that the Respondents
are in occupation does not diminish the Appellant’s right to seek remedy
from this court. I am more concerned by the fact that the dispute in the case
involves members of the same family. Having considered these factors and
the general case I am of the view that this is a special case which requires
careful balance. In the circumstances, I direct that all income from the suit
property shall be deposited in an interest earning account in the joint names
of the Advocates on record for the parties in a reputable bank, pending the
hearing and final determination of this Appeal. Those shall be the orders of
this court. The costs of the application will abide the outcome of the appeal.
Dated and delivered at Nairobi this 26th day of April, 2004.
ALNASHIR VISRAM
JUDGE