[1986] KECA 6 (KLR)
The Court of Appeal held that the application for an injunction was meritorious because there existed serious disputes of fact and law regarding the ownership of the subject matter, and the appeal could not be considered frivolous. The court reaffirmed the established principle that, in cases involving disputed...
Source-derived case information.
- Citation
- [1986] KECA 6 (KLR)
- Parties
- Applicant: Maheshchandra Shamjibhai Gheewala; Respondent: Aruna B. Gheewala; Respondent: Alka B. Gheewala; Respondent: Jagdish R. Morjaria; Respondent: Jagdish Bhatt; Respondent: Flowers Investments Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 127 of 1986
- Procedural Posture
- Civil Application / Application for Injunction Pending Appeal
- Outcome
- Application allowed; injunction granted pending appeal.
- Judges
- EN Juma, HG Platt, JM Gachuhi
- Legal Topics
- Interlocutory Injunctions, Preservation of Property, Specific Performance, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maheshchandra Shamjibhai Gheewala
Applicant
Aruna B. Gheewala
Respondent
Alka B. Gheewala
Respondent
Jagdish R. Morjaria
Respondent
Jagdish Bhatt
Respondent
Flowers Investments Limited
Respondent
Procedural Posture
Civil Application / Application for Injunction Pending Appeal
Legal Issues
- 1 Whether an injunction should be granted to preserve the subject matter pending the determination of the intended appeal.
- 2 Whether there are special circumstances that would justify refusing the injunction despite the general rule.
- 3 Whether the appeal is arguable and not frivolous.
Ratio Decidendi
The Court of Appeal held that the application for an injunction was meritorious because there existed serious disputes of fact and law regarding the ownership of the subject matter, and the appeal could not be considered frivolous. The court reaffirmed the established principle that, in cases involving disputed property and pending appeals, an injunction should generally be granted to preserve the subject matter unless special circumstances dictate otherwise. The court found no such special circumstances in this case. The court distinguished the present facts from those in Madhupaper International Limited v Paper Kerb and Others, and emphasized that the applicable precedent was M M Butt v...
Court Disposition
Application allowed; injunction granted pending appeal.
Orders
- An injunction is granted to preserve the subject matter pending the determination of the appeal.
- The applicant shall give the usual undertaking as to damages in writing.
Full Case Text
Judgment text and source record
68 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: Nyarangi, Platt and Gachuhi, J J A)
CIVIL APPLICATION NO NAI 127 OF 1986
( In the matter of an intended appeal )
BETWEEN
MAHESCHANDRA SHAMJIBHAI GHEEWALA …….…. ..........................APPLICANT
AND
1. ARUNA B. GHEEWALA
(Sued in her personal capacity and as executrix of the estate of Bhupendra S Gheewala)
2. ALKA B GHEEWALA
3. JAGDISH R. MORJARIA ……………...……................................... RESPONDENTS
4. JAGDISH BHATT
5. FLOWERS INVESTMENTS LIMITED
(Appeal from the order of the High Court of Kenya at Nairobi (Shields, J) dated July 23, 1986
IN
Civil Case 1395 of 1986 )
__________________
RULING OF THE COURT
The application for an injunction under rule 5(2) (b) of the Rules of this court is in our judgment irresistable. The affidavits which were filed by the parties in support of their respective arguments disclose several clear issues of fact and law, which will no doubt be canvassed during the hearing of the appeal. The appeal cannot be said at this stage to be obviously without merit or frivolous because, inter alia, there is a serious dispute as to the ownership of the subject matter. It is relevant that the plaintiff prays for specific performance of the disputed sale of the shares. In these circumstances the usual rule is that an injunction is granted to preserve the property pending the determination of the dispute.
In this case the view was urged that the circumstances of the case did not attract the operation of the general rule.
Looking at this dispute we are not persuaded that there are special circumstances which should cause us not to preserve the subject matter pending the appeal. The decision inMadhupaper International Limited v Paper Kerb and Others Civil Application Nai 116 of 1985 turned on the peculiar facts of that case. We hasten to state that the facts of this case are within the established practise of this court founded inM M Butt v The RentRestriction Tribunal, Civil Application No Nai 6 of 1979 andErinford Properties Ltd v Cheshire County Council, [1974] 2 All ER 448 and emphatically not onGiella v Cassman Brown & Co. Ltd [ 1973] EA 358. The purpose of an application such as this under rule 5(2) (b) is to preserve the subject –matter in dispute so that the rights of an appellant are safeguarded and to prevent the appeal, if successful, from being nugatory.
We allow the application and grant the injunction. We will now hear counsel on the terms of the injunction.
Costs of the application to the applicant. Delivered at Nairobi this 14th day of October, 1986
J O Nyarangi
Judge of Appeal
H G Platt
Judge of Appeal
J M Gachuhi
Judge of Appeal
I certify that this is a true copy of the original
……………………..
DEPUTY REGISTRAR
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(Coram: Nyarangi, Platt and Gachuhi, J J A)
CIVIL APPLICATION NO NAI127 OF 1986
( In the matter of an intended appeal )
BETWEEN
MAHESCHANDRA SHAMJIBHAI GHEEWALA ………...……………. APPLICANT
AND
1. ARUNA B. GHEEWALA
(Sued in her personal capacity and as executrix of the estate of Bhupendra S Gheewala)
2. ALKA B GHEEWALA
3. JAGDISH R. MORJARIA ………………..…………………….. RESPONDENTS
4. JAGDISH BHATT
5. FLOWERS INVESTMENTS LIMITED
(Appeal from the order of the High Court of Kenya at Nairobi (Shields, J) dated July 23, 1986
IN
Civil Case 1395 of 1986 )
__________________
FURTHER ORDER OF THE COURT
The applicant shall give the usual undertaking as to damages in writing.
The appeal shall be filed in the next 21 days.
The earliest possible date for hearing this action shall be allocated.
Liberty to apply.
Delivered at Nairobi this 21st day of October, 1986
J O Nyarangi
Judge of Appeal
H.G Platt
Judge of Appeal
J M Gachuhi
Judge of Appeal
I certify that this is a true copy of the original
………………………..
DEPUTY REGISTRAR