[2020] KECA 97 (KLR)
The Court found that the applicant failed to satisfy the twin principles required for the grant of an injunction under Rule 5(2)(b) of the Court of Appeal Rules. Specifically, the applicant did not demonstrate that the intended appeal was arguable, nor that the appeal would be rendered nugatory if the injunction was...
Source-derived case information.
- Citation
- [2020] KECA 97 (KLR)
- Parties
- Applicant: Kenya Power & Lighting Co. Ltd; Respondent: Kigaita Ngare Unduthu & 36 Others
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Application 175 of 2019
- Procedural Posture
- Injunction Application / Ruling on Application for Injunction Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- FI Koome
- Legal Topics
- Stay of Execution, Interlocutory Injunctions, Judicial Discretion, Compensation for Land Use
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Power & Lighting Co. Ltd
Applicant
Kigaita Ngare Unduthu & 36 Others
Respondent
Procedural Posture
Injunction Application / Ruling on Application for Injunction Pending Appeal
Legal Issues
- 1 Whether the applicant satisfied the principles for grant of an injunction under Rule 5(2)(b) of the Court of Appeal Rules.
- 2 Whether substantial loss would result to the applicant if stay is not granted.
- 3 Whether the intended appeal is arguable and whether it would be rendered nugatory if the injunction is not granted.
Ratio Decidendi
The Court found that the applicant failed to satisfy the twin principles required for the grant of an injunction under Rule 5(2)(b) of the Court of Appeal Rules. Specifically, the applicant did not demonstrate that the intended appeal was arguable, nor that the appeal would be rendered nugatory if the injunction was not granted. The Court noted that the applicant continued to use the respondents' land without compensation and that the amount due to each respondent was not sufficient to warrant the exceptional grant of an injunction. The Court affirmed the lower court's correct application of the law and judicial discretion in refusing stay, and dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application for injunction under Rule 5(2)(b) is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
40 paragraphs
IN THE COURT OF APPEAL
AT NYERI
(CORAM: OUKO, (P), KOOME & GATEMBU, JJ.A)
CIVIL APPLICATION NO. 175 OF 2019
BETWEEN
KENYA POWER & LIGHTING CO. LTD...............................................................APPLICANT
AND
KIGAITA NGARE UNDUTHU & 36 OTHERS.................................................RESPONDENTS
(An application under Rule 5(2)(b) of the Court of Appeal Rules 2010 for injunction of the
ruling and orders pending the filing, hearing and determination of the intended appeal of the
Environment and Land Court ofKenya at Nyahururu (Oundo, J.) dated 15thOctober, 2019
in
E&LC No. 21 of 2019)
*****************
RULING OF THE COURT
A dispute over the use of the respondents’ land by the applicant was resolved by the magistrate’s court in Nyahururu C.M.C.C. Suit No. 256 of 2006 where the court awarded to each of the respondents a sum of Ksh 300,000. The applicant’s application before the Chief Magistrate for stay of execution was rejected.
Intending to appeal that decision to the Environment and Land Court, the applicant sought, in the meantime, an order of stay in that court. The learnedJudge (Oundo, J.), before whom the application was placed, found no merit in it and dismissed it.
Again, dissatisfied, the applicant lodged a notice of appeal evincing an intention to appeal to this Court.
In the meantime, however, it has taken out an amended notice of motion for injunction under Rule 5(2)(b) arguing, in support of the two principles that have to be satisfied under the rule, that the amount in excess of Ksh 14,029,157 that it is required to pay the respondents is colossal, and if paid over to the respondents, would most likely not be recoverable from them in case the appeal was to succeed. It was further submitted that the learned Judge failed to properly apply the law and judicially exercise her discretion when she dismissed the applicant’s application for stay.
We bear in mind that what has aggrieved the applicant is an interlocutory order made by the court below in its appellate jurisdiction when it refused to stay the orders of the trial court. The main appeal to that court is yet to be heard. For this reason, we shall be circumspect in determining this application and avoid any definitive determinations of factual or legal points.
The only question that falls to us to answer is whether the twin principles alluded to above have been met by the applicant. We must emphasize that it is rare for this Court to find, at this stage, that an appeal or an intended appeal is not arguable.
This application, however, presents one of such rare occasions. We are of the considered opinion that, under Order 42 Rule 6 and 7 of the Civil Procedure Rules, the learned Judge was being invited to exercise judicial discretion to grant or refuse to grant an order of stay of execution of the decree from the judgment of the trial court.
In determining the application the learned Judge, in our view correctly set out the three conditions to be considered before an order of stay pending appeal under Order 42 Rule (6) (2) can granted, namely, the applicant had the onus to demonstrate that substantial loss may result to it in the absence of an order of stay; that it has brought the application for stay without undue delay; and that it has given such security as the court may order for the due performance of such decree or order.
For each condition, the learned Judge cited authority in support thereof. For instance, she relied on the following well-known decisions; Mukuma vs. Abuoga(1988) KLR 645,Kenya Shell Limited vs. Kibiru[1986] KLR 410, to arrive at the decision intended to be challenged in the appeal.
We reiterate that we do not, respectfully, think that the appeal will be arguable.
On the second limb, we have taken into consideration the amount that is due to each of the respondents, and the fact that the applicant continues to use their parcels of land even without compensation, and with that in mind, we have concluded that the applicant’s appeal will not be nugatory in the absence of an order of injunction.
The applicant, having failed to meet the twin principles, this application must fail. We, accordingly, dismiss it with costs.
Dated and delivered at Nairobi this 4thday of December, 2020.
W. OUKO, (P)
....................................
JUDGE OF APPEAL
M.K. KOOME
....................................
JUDGE OF APPEAL
S. GATEMBU KAIRU, (FCIArb)
...................................
JUDGE OF APPEAL
I certify that this is a truecopy of the original.
Signed
DEPUTY REGISTRAR