[1998] KECA 215 (KLR)
The Court of Appeal held that the applicant was not entitled to an injunction because the agreement between the parties contained provisions for termination other than the thirty-day notice, and the applicant had not established an arguable appeal. The applicant had also shifted from the claims set out in the plaint...
Source-derived case information.
- Citation
- [1998] KECA 215 (KLR)
- Parties
- Applicant: Mark Wangai Muchemi t/a Border Service Station; Respondent: Agip (K) Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 319 of 1998
- Procedural Posture
- Stay Application / Application for Stay of Execution Pending Intended Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- E Owuor
- Legal Topics
- Injunctions, Termination of Contracts, Arbitration Clauses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mark Wangai Muchemi t/a Border Service Station
Applicant
Agip (K) Limited
Respondent
Procedural Posture
Stay Application / Application for Stay of Execution Pending Intended Appeal
Legal Issues
- 1 Whether the applicant was entitled to an injunction restraining the respondent from terminating the agreement without thirty days' notice.
- 2 Whether the existence of an arbitration clause precluded termination without notice.
- 3 Whether the applicant had demonstrated an arguable appeal warranting a stay of execution.
Ratio Decidendi
The Court of Appeal held that the applicant was not entitled to an injunction because the agreement between the parties contained provisions for termination other than the thirty-day notice, and the applicant had not established an arguable appeal. The applicant had also shifted from the claims set out in the plaint and sought to rely on new matters, which was not permissible. Consequently, the court found no basis to grant a stay of execution or to consider whether the appeal would be rendered nugatory, and dismissed the application with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The motion herein is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
CORAM: OMOLO, TUNOI & SHAH, JJ.A
CIVIL APPLICATION NO. NAI. 319 OF 1998 (UR.125/98)
BETWEEN
MARK WANGAI MUCHEMI T/A BORDER SERVICE STATION.......APPLICANT
AND
AGIP (K) LIMITED.....................................RESPONDENT
(An application for stay of execution in an intended appeal from an order of the High Court of Kenya at Busia (Mr. Justice Mbito, J) dated 2/12/98, in H.C.C.C. NO. 64 OF 1998) ******************
RULING OF THE COURT
In the circumstances of this case, we think the learned judge correctly exercised his discretion in refusing to grant to the applicant the injunction sought. The applicant was a licensee and his case before the superior court was that the respondent could only terminate the agreement upon given a notice of thirty days. It was also alleged in the plaint that if there was any dispute between the parties, the matter would be referred to arbitration. The purpose of these averments in the plaint was that the respondent was not entitled to terminate the agreement without having served the applicant with a notice of thirty days or that if there was a dispute between the parties, such dispute sought to be referred to arbitration.
The learned judge of the superior court thought that the agreement between the parties had other provisions for terminating the agreement other than through the notice of thirty days. On the material before him, we think the judge would validly refuse to grant the injunction. We note that the applicant virtually put aside his claims as set out in the plaint and sought to rely on other matter. The applicant was not entitled to do so. What we are saying is that we do not think the applicant has an arguable appeal and that being so we do not think it is necessary for us to go into the question of the appeal being rendered nugatory. We accordingly refuse this application and order that the motion herein be and is hereby dismissed with costs to the respondent.
Made at Nairobi this 23rd day of December, 1998.
R. S. C. OMOLO
JUDGE OF APPEAL
P. K. TUNOI
JUDGE OF APPEAL
E. OWUOR
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.