[2018] KEHC 1209 (KLR)
The court found that although it has inherent powers to grant injunctions to preserve the subject matter of litigation, in this case the property in dispute had already been sold pursuant to the statutory power of sale, and the sale price was disclosed. The court determined that any loss suffered by the plaintiff,...
Source-derived case information.
- Citation
- [2018] KEHC 1209 (KLR)
- Parties
- Plaintiff: Juja Coffee Exporters Limited; Defendant: National Bank of Kenya Limited; Defendant: Virgin Packaging Limited; Defendant: Bakhresa Grain Milling (K) Limited; Defendant: Grain Bulk Handlers Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 95 of 2018
- Procedural Posture
- Civil Case / Ruling on Application for Injunction Pending Appeal and Leave to Appeal
- Outcome
- Application for injunction pending appeal dismissed; leave to appeal granted.
- Judges
- CA Otieno
- Legal Topics
- Injunction Pending Appeal, Statutory Power of Sale, Leave to Appeal, Compensation by Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Juja Coffee Exporters Limited
Plaintiff
National Bank of Kenya Limited
Defendant
Virgin Packaging Limited
Defendant
Bakhresa Grain Milling (K) Limited
Defendant
Grain Bulk Handlers Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application for Injunction Pending Appeal and Leave to Appeal
Legal Issues
- 1 Whether the plaintiff is entitled to an injunction pending appeal to preserve the subject property.
- 2 Whether leave to appeal should be granted against the orders of the court.
Ratio Decidendi
The court found that although it has inherent powers to grant injunctions to preserve the subject matter of litigation, in this case the property in dispute had already been sold pursuant to the statutory power of sale, and the sale price was disclosed. The court determined that any loss suffered by the plaintiff, should the appeal succeed, would be quantifiable and compensable by an award of damages. Therefore, there was no risk of irreparable harm that would justify the grant of an injunction pending appeal. The court also noted that the conclusion of the sale would benefit both parties: the bank would recover its debt and the plaintiff would be released from the debt burden....
Court Disposition
Application for injunction pending appeal dismissed; leave to appeal granted.
Orders
- Leave to appeal against the orders of the court is granted to the plaintiff.
- Application for injunction pending appeal is declined.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CIVIL CASE NO. 95 OF 2018
JUJA COFFEE EXPORTERS LIMITED........................PLAINTIFF
VERSUS
1. NATIONAL BANK OF KENYA LIMITED
2. VIRGIN PACKAGING LIMITED
3. BAKHRESA GRAIN MILLING (K) LIMITED
4. GRAIN BULK HANDLERS LIMITED.................DEFENDANTS
R U L I N G
1. Leave to appeal is a right this court considers should not be denied to any litigant so desirous. I do grant to the plaintiff leave to appeal against the orders of this afternoon.
2. On injunction pending appeal, I do appreciate that counsel bases his application and request upon the principles of law that foundation of a suit need to be preserved so that it is not rendered worthless. I do entertain the view that this court and indeed any other court whose decision is sought to be challenged on appeal ought to appreciate that the appellant court may in its own appellate jurisdiction disturb the impugned decision.
3. Accordingly, the injunction pending appeal by the trial court must be seen to serve the very purpose of the court system and is issued pursuant to the inherent powers of the court to do justice and avoid abuse of process.
4. But the inherent powers of the court is the reserve of power the court exercises by its own existence and purpose – to do justice. Being an injunction, by its nature a court must considers the worse case scenario that would result if it be denied.
5. The dispute here is a property which has been sold pursuant to the statutory power under legal charge. There are papers filed to show that before sale, the property was valued and a sale price has been disclosed. Any loss that may be suffered by the plaintiff in the event of success on appeal is thus capable of being ascertained and determined in monetary terms. For that reason, I do not consider that any injury to the plaintiff if the contract be concluded before the appeal is heard will be incapable of compensation by an award of damages.
6. Instead, I do consider that the conclusion of the sale will be of benefit to both sides in that the 1st defendant will have recovered its debt or part thereof and the plaintiff shall have been released of the debt burden or part thereof and the usual bank interests by its account being credited with the purchase price.
7. All in all, I am saying that the informal application has not availed to me the benefit to understand the difficulty of injustice to be suffered by the plaintiff. For that reason, I decline to grant an injunction pending appeal as prayed by the plaintiff.
Dated and delivered at Mombasa this 19th day of December 2018.
P.J.O. OTIENO
JUDGE