[2019] KEHC 8740 (KLR)
The court found that the appellant had not demonstrated sufficient grounds to warrant the grant of a stay of execution of the lower court's order. The trial court had properly considered the principles governing the grant of injunctions and found that the 1st respondent, as an innocent purchaser for value, should...
Source-derived case information.
- Citation
- [2019] KEHC 8740 (KLR)
- Parties
- Appellant: Joseph Munyi Mumu; Respondent: Joseph Kipleting; Respondent: Stanley Kinyanjui Njuguna
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 564 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs to the respondents
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Stay of Execution, Mandatory Injunctions, Ownership of Motor Vehicles, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Munyi Mumu
Appellant
Joseph Kipleting
Respondent
Stanley Kinyanjui Njuguna
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the appellant is entitled to a stay of execution of the lower court's order pending appeal.
- 2 Whether the appellant has demonstrated substantial loss if the stay is not granted.
- 3 Whether a mandatory injunction can be granted at an interlocutory stage.
Ratio Decidendi
The court found that the appellant had not demonstrated sufficient grounds to warrant the grant of a stay of execution of the lower court's order. The trial court had properly considered the principles governing the grant of injunctions and found that the 1st respondent, as an innocent purchaser for value, should remain in possession of the motor vehicle pending the determination of the suit. The application for stay was therefore dismissed as the appellant failed to establish substantial loss or special circumstances justifying the orders sought.
Court Disposition
application dismissed with costs to the respondents
Orders
- The appellant's application for stay of execution is dismissed.
- Costs of the application are awarded to the respondents.
Full Case Text
Judgment text and source record
19 paragraphs
REUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 564 OF 2017
JOSEPH MUNYI MUMU...........................APPELLANT/APPLICANT
VERSUS
JOSEPH KIPLETING........................................FIRST RESPONDENT
STANLEY KINYANJUI NJUGUNA.............SECOND RESPONDENT
RULING
There is a dispute herein involving motor vehicle registration No. KBX 772J said to be owned by the appellant herein but which the 2nd respondent is said to have sold to the 1st respondent. In a ruling delivered on 13th October, 2017 the lower court refused to restrain the respondents from interfering with the said motor vehicle and further ordered that the motor vehicle be released to the respondent.
The lower court ruling aggrieved the appellant who filed a memorandum of appeal on 18th October, 2017 that is five days after the said ruling. In that Memorandum of appeal he prays that the motor vehicle be returned to him as the lawful owner or that in the alternative, it be forwarded to the custody of the flying squad police unit at Kilimani Police Station pending the hearing of this appeal and a criminal case which he lodged against the 2nd respondent.
In the meantime he filed the present application to stay execution of the lower court order pending the hearing of the appeal. The application is supported by grounds set out on the face of the application alongside an affidavit sworn by the appellant. The application is opposed and there is on record two affidavits in reply sworn by both respondents. The parties have also filed written submissions which I have on record.
There is no doubt that the application was filed timeously but the appellant has to establish that he may suffer substantial loss if the orders he seeks are not granted and that the respondents should provide security for any decree that may be issued against them.
In the ruling dated 13th October, 2017 the trial court addressed several issues relating to the granting of injunctions. More importantly whether or not a mandatory injunction may be given on an interlocutory application as was sought by the appellant herein. In granting the order in favour of the 1st respondent herein who was the plaintiff in the lower court the court said as follows,
“Considering the above settled principles which bind this court, I find that since the plaintiff is an innocent purchaser for value he should not be made to suffer due to the mis-understanding between the 1st and 2nd defendants who appear to be principle and urgent. I find special grounds to warrant the grant of the mandatory orders for the release of the vehicle by the flying squad to the plaintiff pending the hearing and determination of the suit.”
Before reaching the said conclusion the trial court addressed the chronology of events leading to the possession of the motor vehicle in the hands of the 1st respondent herein. I have been guided by the authorities cited by counsel, the facts are set out and the relationships between the parties herein. I am persuaded that the trial court had reason to hold as it did that the 1st respondent should remain in possession of the said motor vehicle. Consequently, the application by the appellant herein is hereby dismissed with costs to the respondents.
Dated, signed and delivered at Nairobi this 28th Day of March, 2019.
A. MBOGHOLI MSAGHA
JUDGE