[2002] KEHC 250 (KLR)
The application was dismissed because it was brought under the wrong legal provision—Order XXXIX Civil Procedure Rules, which only applies to temporary injunctions in pending suits. There was no pending suit before the High Court, and the orders sought (stay of execution and maintenance of status quo) are not...
Source-derived case information.
- Citation
- [2002] KEHC 250 (KLR)
- Parties
- Applicant: Lawrence Nduati; Respondent: Nancy Chepngeno Bore
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 840 of 2001
- Procedural Posture
- Miscellaneous Application / Ruling on Chamber Summons for Stay of Execution and Status Quo Orders Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Stay of Execution, Temporary Injunctions, Jurisdiction of High Court, Land Disputes Tribunal Awards
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Lawrence Nduati
Applicant
Nancy Chepngeno Bore
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Chamber Summons for Stay of Execution and Status Quo Orders Pending Appeal
Legal Issues
- 1 Whether the High Court has jurisdiction to grant a stay of execution and maintain status quo orders in respect of a Land Disputes Tribunal award adopted by the Resident Magistrates Court.
- 2 Whether the application under Order XXXIX Civil Procedure Rules is competent in the absence of a pending suit.
Ratio Decidendi
The application was dismissed because it was brought under the wrong legal provision—Order XXXIX Civil Procedure Rules, which only applies to temporary injunctions in pending suits. There was no pending suit before the High Court, and the orders sought (stay of execution and maintenance of status quo) are not provided for under Order XXXIX. Furthermore, the High Court would only have jurisdiction to grant a stay of execution if the matter was properly before it as an appeal from the Resident Magistrates Court under Order XLI Rule 4(1) Civil Procedure Rules. The applicant's failure to follow the correct appellate procedure rendered the application grossly incompetent, and the court lacked...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MISC APPLICATIN 840 OF 2001
LAWRENCE NDUATI……………………………….PLAINTIFF
VERSUS
NANCY CHEPNGENO BORE…………………..DEFENDANT
RULING
This is miscellaneous application is brought by way of chamber summons.
The chamber summons is brought under order XXXIX Rule 1 (a) 2, 2(a) AND Section 3A of the CP Act. The applicant prays for two main orders namely;
1. There be a stay of execution of the orders emanating from the decision of the land Dispute Tribunal suit no. 5 of 2001 and subsequently adopted by court.
2. That the status quo be maintained till the appeal is heard and determined.
The application is supported by the affidavit of the applicant. It is apparent that the dispute between the parties was the subject matter of Kajiado district Land Disputes Tribunal are no 5 of 2001. The applicant lost in that application. The award of the Tribunal was filed in the Resident Magistrates Court – vide application No. 12/2001 and on 27. 1.2001 the court entered judgment in terms of the award.
On 4. 7.2001 the RMs court Kajiado stayed the ordered of 27. 6.2001 for 14 days and gave applicant leave to appeal out of time against the decision of the Tribunal to the Provincial Land Disputes Tribunal on 19. 7.2001, the Resident Magistrates court at Kajiado rejected the applicants application for order of stay of execution of the orders of 27. 6.2001 pending appeal to the Provincial Land Disputes Tribunal Applicant says that he lodged an Appeal to the Provincial Land Disputes Tribunal.
By the present application, applicant seeks a stay of execution of the orders pending the determination of the appeal to the Provincial Land Dispute Tribunal
The Kajiado District Land Disputes Tribunal ordered the District Land Registrar and the District surveyor to go to the applicants land and open up the road of access to respondents land using the survey maps.
This is not an Appeal from the decision of the RM’s Court Kajiado. If it was such an appeal then the application would have been made under Order XLI Rule 4(1) Civil Procedure Rules and the High Court would have had jurisdiction to grant a stay of execution of the decision of the Resident Magistrates court pending the determination of the Appeal.
Order XXXIX under which the present application is brought deal with temporary injunction in a pending suit. It is plainly clear from order XXXIX that the application for temporary injunction are made a pending suit. It is the law that an order of temporary injunction can only be made in a pending suit.
Secondly the orders sought in the application that stay of execution and maintenance of status quo are not provided for in order XXXIX Civil Procedure Rules.
Clearly this application is grossly incompetent and I agree with the respondent as she states in her replying affidavit that this court does not have jurisdiction to grant the orders sought.
I think that the correct cause would have been to file an appeal against the orders of Resident Magistrates Court Kajiado given on 19. 7.2001 and on the basis of the appeal seek an order for stay of execution of the orders of the Resident magistrates court.
For the above reasons, the application is dismissed with costs to the Respondent
E. M. Githinji
Judge
26. 6.2002
Mr. Kiptoo present
Mr. Katwa absent
Respondent present