[2007] KEHC 3144 (KLR)
The High Court determined that it had no jurisdiction to grant a fresh oral application for a temporary injunction after having already dismissed previous applications for injunction under Order 39 of the Civil Procedure Rules. The court found that neither Section 3A of the Civil Procedure Act nor Order 39 provided...
Source-derived case information.
- Citation
- [2007] KEHC 3144 (KLR)
- Parties
- Plaintiff: Joseph Wainaina Iraya T/A Queen Chic Inn; Defendant: H. E. Daniel Arap Moi; Defendant: Shadrack Ngugi Kamau T/A Blackie Auto Spares
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Case 122 & 119 of 2006
- Procedural Posture
- Civil Case / Ruling on Oral Application for Temporary Injunction and Leave to Appeal
- Outcome
- Oral application for temporary injunction rejected; leave to appeal granted to Plaintiff and Second Defendant.
- Judges
- AI Tullu
- Legal Topics
- Injunctions, Leave to Appeal, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Wainaina Iraya T/A Queen Chic Inn
Plaintiff
H. E. Daniel Arap Moi
Defendant
Shadrack Ngugi Kamau T/A Blackie Auto Spares
Defendant
Procedural Posture
Civil Case / Ruling on Oral Application for Temporary Injunction and Leave to Appeal
Legal Issues
- 1 Whether the High Court can grant a fresh oral application for a temporary injunction pending appeal after dismissing previous injunction applications.
- 2 Whether Section 3A of the Civil Procedure Act or Order 39 of the Civil Procedure Rules allows the High Court to issue injunctive orders in these circumstances.
- 3 Whether there are exceptional circumstances justifying the grant of injunctive orders pending appeal.
Ratio Decidendi
The High Court determined that it had no jurisdiction to grant a fresh oral application for a temporary injunction after having already dismissed previous applications for injunction under Order 39 of the Civil Procedure Rules. The court found that neither Section 3A of the Civil Procedure Act nor Order 39 provided a basis for granting such relief in the absence of exceptional circumstances, which were not present in this case. The court emphasized that the proper forum for seeking injunctive relief pending appeal was the Court of Appeal, and that granting further injunctive orders at this stage would be improper and irregular. Consequently, the court rejected the informal application for...
Court Disposition
Oral application for temporary injunction rejected; leave to appeal granted to Plaintiff and Second Defendant.
Orders
- Leave is granted to the Plaintiff and Second Defendant to file their respective appeals against the ruling.
- The informal application for injunctive orders is rejected.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET Civil Case 122 & 119 of 2006 (CONSOLIDATED)
JOSEPH WAINAINA IRAYA
T/A QUEEN CHIC INN ………………..................................………….. PLAINTIFF
VERSUS
H. E. DANIEL ARAP MOI …………….......….....................………. 1ST DEFENDANT
SHADRACK NGUGI KAMAU
T/A BLACKIE AUTO SPARES …….....................….…………….. 2ND DEFENDANT
R U L I N G
I have considered the applications made on behalf of the Plaintiff and the Second Defendant. I do hereby grant leave to the Plaintiff and the Second Defendant to file their respective appeals against my ruling, if this be necessary.
With regard to the oral application for a temporary injunction pending the filing of a formal application for injunction in the Court of Appeal or pending the filing of an appeal, I do make the following findings/decision.
Firstly, I do not think I can invoke the provisions of Section 3A of the Civil Procedure Act in the circumstances. This is not an application for stay of execution pending appeal but a fresh application for injunction. A fresh oral application for injunction based on the intended appeal. We have just painfully and tediously gone through vigorous proceedings under Order 39 of the Civil Procedure Rules. This Court has given its Ruling. It has dismissed the applications for injunction with costs. The Court has given its reasons which are on record. It would appear to me to be improper, if not irregular for this Court once again to reissue any injunctive orders pending anything. The applications for injunction are spent and discharged at this level of the High Court. I have once before given some Interim Preservatory Orders pending the filing of an application for an injunction in the Court of Appeal. I am now doubtful whether I was right. Secondly, there were exceptional reasons in the other previous case.
In the present case, I see no exceptional circumstances. I doubt whether strictly I would have any jurisdiction to grant fresh injunctive orders. I do not agree that Order 39, Civil Procedure Rules contemplates such a situation.
Section 66 of the Civil Procedure Act relates to the appellate jurisdiction of this Court when dealing with appeals from the Subordinate Courts and Tribunals. This Court cannot usurp the jurisdiction of the Court of Appeal.
I do hereby reject the informal application for injunctive orders. Costs in the cause.
Dated and Delivered at Eldoret on this 19th January, 2007.
M. K. IBRAHIM
JUDGE