[2001] KECA 347 (KLR)
The Court found that even if the intended appeal was arguable, the applicants failed to demonstrate that the appeal would be rendered nugatory if the injunction was not granted. The applicants conceded that compensation by damages would be adequate if the goods were sold and the appeal succeeded. As such, the Court...
Source-derived case information.
- Citation
- [2001] KECA 347 (KLR)
- Parties
- Applicant: Joseph Gichohi; Applicant: Julius Kamau; Applicant: Eliud Ndungu Njoroge t/a Igware Hardware; Respondent: Limuru Road Tyres & Automart; Respondent: Haki Traders
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 261 of 2001
- Procedural Posture
- Injunction Application / Application for Injunction Pending Intended Appeal
- Outcome
- application dismissed with costs to the respondents
- Legal Topics
- Interlocutory Injunctions, Nugatory Appeal Test, Compensation by Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Gichohi
Applicant
Julius Kamau
Applicant
Eliud Ndungu Njoroge t/a Igware Hardware
Applicant
Limuru Road Tyres & Automart
Respondent
Haki Traders
Respondent
Procedural Posture
Injunction Application / Application for Injunction Pending Intended Appeal
Legal Issues
- 1 Whether the applicants have satisfied the conditions for grant of an injunction pending appeal.
- 2 Whether the intended appeal would be rendered nugatory if the injunction is not granted.
- 3 Whether compensation by damages is an adequate remedy in the circumstances.
Ratio Decidendi
The Court found that even if the intended appeal was arguable, the applicants failed to demonstrate that the appeal would be rendered nugatory if the injunction was not granted. The applicants conceded that compensation by damages would be adequate if the goods were sold and the appeal succeeded. As such, the Court held that there was no valid reason to grant the injunction, and the application was dismissed with costs to the respondents.
Court Disposition
application dismissed with costs to the respondents
Orders
- The application for injunction is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE COURT OF APPEAL AT NAIROBI CORAM: OMOLO, TUNOI & O'KUBASU, JJ.A. CIVIL APPLICATION NO. NAI 261 OF 2001 (UR 141/01)
BETWEEN
JOSEPH GICHOHI JULIUS KAMAU ELIUD NDUNGU NJOROGE T/A IGWARE HARDWARE ........................... APPLICANTS AND LIMURU ROAD TYRES & AUTOMART HAKI TRADERS ...................................... RESPONDENTS
(Application for injunction pending the intended appeal from the ruling and order of the High Court of Kenya at Nairobi (Gacheche, Comm/Assize) dated 17th July, 2001
in
H.C.C.C. NO. 1230 OF 2000) ***************
RULING OF THE COURT
Even if we were to assume in favour of the applicants that their intended appeal is arguable - and we are far from satisfied that the intended appeal is arguable, - the applicants still had to satisfy us that unless we grant the injunction they seek, their intended appeal, if successful, will be rendered nugatory. The applicants concede that they have been evicted from the suit premises. Their motion before us does not contain any prayer for a mandatory injunction to reinstate them in the premises. What we understand from Mr Kahiga is that they are seeking an injunction to restrain the sale of their distrained goods.
Mr Kahiga agrees that if the goods are sold and they succeed in their intended appeal, they will be compensated by way of damages. The attached goods are valued at about Shs.60,000/=. We do not see how their intended appeal will be rendered nugatory if it succeeds and we have refused to grant an injunction. We are satisfied that these applicants are singularly not entitled to the orders they seek; there is no valid reason for granting to them those orders. That being our view of the matter, we order that this application be and is hereby dismissed with costs to the respondent.
Dated and delivered at Nairobi this 15th day of November, 2001.
R. S. C. OMOLO
…………………………. JUDGE OF APPEAL
P. K. TUNOI
………………………… JUDGE OF APPEAL
E. O. O'KUBASU
………………………. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR