[2015] KECA 791 (KLR)
The Court of Appeal held that since the High Court suit (H.C.C.C. No. 668 of 2006) was dismissed for want of prosecution, there was no longer a substantive matter upon which the appeal could be anchored. The appeal, which sought to challenge an interlocutory ruling in the now-dismissed suit, had lost its substratum....
Source-derived case information.
- Citation
- [2015] KECA 791 (KLR)
- Parties
- Appellant: Kenline Agencies Ltd.; Respondent: Housing Finance Company of Kenya Limited; Respondent: John Githua Njogu
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 84 of 2007
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- RN Nambuye, GK Oenga
- Legal Topics
- Interlocutory Injunctions, Dismissal for Want of Prosecution, Appeal Dismissal, Registration of Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenline Agencies Ltd.
Appellant
Housing Finance Company of Kenya Limited
Respondent
John Githua Njogu
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appeal can be sustained after the dismissal of the High Court suit for want of prosecution.
- 2 Whether the interlocutory injunction sought by the appellant remains tenable in the absence of the main suit.
Ratio Decidendi
The Court of Appeal held that since the High Court suit (H.C.C.C. No. 668 of 2006) was dismissed for want of prosecution, there was no longer a substantive matter upon which the appeal could be anchored. The appeal, which sought to challenge an interlocutory ruling in the now-dismissed suit, had lost its substratum. The court found that it would be futile and contrary to procedural law to entertain an appeal whose foundation no longer existed. Accordingly, the appeal was dismissed and the appellant was ordered to bear the costs.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The appellant shall bear the costs of the appeal.
Full Case Text
Judgment text and source record
30 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: NAMBUYE, MUSINGA & KIAGE, JJ.A.)
CIVIL APPEAL NO. 84 OF 2007
BETWEEN
KENLINE AGENCIES LTD. …………………..…....……………….……. APPELLANT
VERSUS
HOUSING FINANCE COMPANY OF KENYA LIMTIED..…........…… 1ST RESPONDENT
JOHN GITHUA NJOGU ……….……………………….…………….. 2ND RESPONDENT
(Appeal against the ruling and order of the High Court of Kenya at Nairobi (Okwengu, J.) dated 23rdMarch, 2007
in
HCCC. No. 668 of 2006)
*********************
JUDGMENT OF THE COURT
This appeal is against the ruling of Okwengu, J. (as she then was) in H.C.C.C. No. 668 of 2006. In that suit the appellant was the plaintiff and he sought an interlocutory injunction to restrain the respondents from registering any other or further documents against the certificate of title registered at the Nairobi Land Registry as I.R. 17003 in respect of a property known as Land Parcel No. 209/11475 pending hearing and determination of the suit.
The application was heard and a ruling delivered on 23rd March, 2007 when the same was dismissed. Being dissatisfied with that ruling, the appellant preferred an appeal to this Court. When the appeal came up for hearing, Mr. Issa, learned counsel for the 2nd respondent, pointed out that the High Court suit may have been dismissed for want of prosecution, though he had no documentary evidence. Mr. Njiru, learned counsel for the appellant, sought an adjournment to enable him check the status of the High Court case, since he was in agreement that in the event that the High Court case had been dismissed this appeal would not stand as its substratum would have been destroyed. The application for adjournment was not granted, consequently the appeal was argued. However, counsel undertook to let the court know the position of the High Court matter.
The Court has now been informed by the Deputy Registrar, High Court Commercial & Tax Division, that H.C.C.C. No. 668 of 2006 was dismissed for want of prosecution on 23rd February, 2012. A copy of the dismissal order that was availed to us shows that on the material day the appellant’s counsel did not attend court while Mr. Issa appeared for the respondents.
In the circumstances, this appeal cannot stand as it seeks to set aside the interlocutory ruling of 23rd March, 2007 and in effect prevent registration of any further dealing with the suit property pending hearing and determination of the high Court case which is no longer in existence. Consequently, the appeal is for dismissal, which we hereby do. The appellant shall bear the costs of the appeal.
Dated and Delivered at Nairobi this 24thday of April, 2015.
R.N. NAMBUYE
………………………………
JUDGE OF APPEAL
D.K. MUSINGA
……………………………
JUDGE OFAPPEAL
P.O. KIAGE
…………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR