[2023] KEHC 21898 (KLR)

Naado & 7 others v Shaban & 5 others (Civil Appeal E744 of 2023) [2023] KEHC 21898 (KLR) (Civ) (11 August 2023) (Ruling)

Neutral citation: [2023] KEHC 21898 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E744 of 2023

AN Ongeri, J

August 11, 2023

Between

Hassan Ole Naado

1st Appellant

Muhndhar Shariff

2nd Appellant

Abdullahi Salat

3rd Appellant

Juma Musa

4th Appellant

Degho Imani

5th Appellant

Khamis Mwaguzo

6th Appellant

Khamis Omar

7th Appellant

Supreme Council of Kenya Muslims (Supkem)

8th Appellant

and

Latiff Ngirati Shaban

1st Respondent

Yusuf Ngotho Ali

2nd Respondent

Gulf African Bank (Kenyatta Avenue)

3rd Respondent

Kenya Commercial Bank (Biashara)

4th Respondent

First Community Bank (Biashara Street)

5th Respondent

Registrar Of Societies

6th Respondent

Ruling

FURTHER RULING 1. This court reached a determination in the ruling dated 11/08/2023 that the applicant/ appellants require to be heard before the trial court can make a determination as to whether the respondents are entitled to an interlocutory mandatory injunction.

2. I am guided by article 159 of the Constitution of Kenya which espouses all courts and tribunals to mete substantive justice between parties.

3. Having directed the trial court to hear the parties on merit, I notice that there is an error apparent on the face of the record in that this court has granted prayer 3 which is an order staying the proceedings of the trial court.

4. I appreciate the clarification sought by the learned counsel for the respondents on that issue.

5. In accordance with section 99 of the Civil Procedure Act, which empowers the court to move either suo moto or by application by a party to correct an error apparent on the face of the record, I vacate the order staying proceedings of the trial court.

6. I set aside the order granting prayer 3 and instead I grant prayers no. 5 and 6 of the application dated 7/8/2023.

7. For avoidance of doubt, this court is not saying that the interlocutory injunction is not merited, what this court is saying is that the appellants are to be accorded an opportunity to be heard (interpartes) before a determination as to whether the interlocutory mandatory injunction is merited should be made.

8. On the issue as to whether the appeal is spent, that is up to the applicants to decide whether they still want to pursue the same.

9. The respondents are granted leave to appeal to the court of Appeal if they are aggrieved by the order of this court.

10. The application dated 7/8/2023 is allowed in terms of prayers 5 and 6.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF AUGUST, 2023. ……………A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent