[2008] KEHC 1041 (KLR)
The court found that the application was fatally defective because it sought a temporary injunction and stay of execution under the wrong provisions of the Civil Procedure Rules. Specifically, Order XXXIX Rule 1 and 2 applies only to pending suits, not to appeals, and the application was not brought under Order XLI...
Source-derived case information.
- Citation
- [2008] KEHC 1041 (KLR)
- Parties
- Appellant: Mburuga Muciri Ngure; Respondent: Ruth Wangari Mburuga
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 67 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application for Injunction and Stay of Execution
- Outcome
- application dismissed
- Judges
- J Karanja
- Legal Topics
- Interlocutory Injunctions, Stay of Execution, Appeals Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mburuga Muciri Ngure
Appellant
Ruth Wangari Mburuga
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application for Injunction and Stay of Execution
Legal Issues
- 1 Whether the application for temporary injunction and stay of execution is properly grounded in law.
- 2 Whether Order XXXIX Rule 1 and 2 of the Civil Procedure Rules applies to appeals.
- 3 Whether the absence of a decree at risk of execution renders the application incompetent.
Ratio Decidendi
The court found that the application was fatally defective because it sought a temporary injunction and stay of execution under the wrong provisions of the Civil Procedure Rules. Specifically, Order XXXIX Rule 1 and 2 applies only to pending suits, not to appeals, and the application was not brought under Order XLI Rule 4, which is the only provision for stay of execution pending appeal. Furthermore, there was no decree at risk of execution, making the application incompetent. As a result, the application lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application is dismissed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL APPEAL 67 OF 2008
MBURUGA MUCIRI NGURE………………….………..APPELLANT
VERSUS
RUTH WANGARI MBURUGA……………………….RESPONDENT
RULING
I have heard the application before me. I have considered the grounds on its face and the rival affidavits for and against the same. I have also considered the oral submissions by both counsel in court and the law applicable in this matter.
First and foremost, I agree with counsel for the Respondent that the said application is fatally defective. The same seeks for a temporary injunction under Order XXXIX Rule 1 and 2 of the Civil Procedure Rules. Although prayer 2 is one for stay of execution, it is noted that the application is not premised on Order XLI Rule 4 of the Civil Procedure Rules at all which is the only order dealing with stay of execution pending an appeal.
Order XXXIX on the other hand applies where there is a suit pending before the court. In this case the suit has already been dismissed and an appeal cannot be said to be a suit for purposes of order XXXIX rule 1 –because an appeal does not commence any civil proceedings. In any event, there is actually no decree here which is at a risk of being executed. My finding therefore is that this application lacks merit and the same is hereby dismissed.
W. KARANJA
JUDGE
13/10/2008
Delivered and signed in open court today in presence of Mr. Munene for Mr. Mwai and Respondent in person.
W. KARANJA
JUDGE
13/10/2008