[2007] KEHC 1124 (KLR)
The court held that it lacked jurisdiction to entertain the application for interlocutory injunction because there was no substantive suit pending before it, only an appeal. Interlocutory orders under Order XXXIX of the Civil Procedure Rules are only applicable where a suit is pending and a party seeks to preserve...
Source-derived case information.
- Citation
- [2007] KEHC 1124 (KLR)
- Parties
- Appellant: Omar Juma Namatsi; Respondent: Gabriel Lukhale Namatsi
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 55 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs to the respondent
- Judges
- J Karanja
- Legal Topics
- Interlocutory Injunctions, Appeals Process, Jurisdiction, Preservation of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Omar Juma Namatsi
Appellant
Gabriel Lukhale Namatsi
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the court can grant interlocutory injunction orders in an appeal where no substantive suit is pending before it.
- 2 Whether the application for injunction is properly before the court in the context of an appeal.
Ratio Decidendi
The court held that it lacked jurisdiction to entertain the application for interlocutory injunction because there was no substantive suit pending before it, only an appeal. Interlocutory orders under Order XXXIX of the Civil Procedure Rules are only applicable where a suit is pending and a party seeks to preserve the subject matter of the suit. Since the only matter before the court was an appeal and not a suit seeking injunctive relief, the application was deemed improperly before the court and was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for interlocutory injunction is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL 55 OF 2006
OMAR JUMA NAMATSI ::::::::::::::::::::::::: APPELLANT
VS
GABRIEL LUKHALE NAMATSI ::::::::::::::::: RESPONDENT
(Arising from Original Bgm Kadhi’s CC. No.1 of 2006)
RULING
The applicant has filed this Chambers Summons under section 3A and 63 of the Civil Procedure Act and OXXXIX Rules 1, 2, 3, and 9 of the Civil Procedure Rules Cap 21 of the Laws of Kenya. He is basically seeking 2 orders as hereunder:
1. The interim order for injunction be issued restraining the appellant by himself or his agents and or servants from selling the estate in dispute, collecting rents from the rental houses of disputed estate, carrying out any development which would interfere with the estate in dispute generally pending the hearing and determination of this appeal.
2. That orders be issued to compel the appellant not to occupy the land of the estate in dispute and the buildings which form part of the disputed estate.
It will be noted that what is before the court is an appeal – Civil Appeal No. 55 of 2006 arising from Bungoma Kadhi’s CC. No.1/2006. As I informed the applicant in court, this application is misplaced and is not properly before the court. Reason being that there is no suit pending before this court in respect of the subject matter herein. What is before the court is an appeal. Interlocutory orders under Order XXXIX only apply in cases where there is a suit pending and where a party find it necessary to seek preservation of the suit property while awaiting the disposal of the suit. There is no suit before me seeking injunctive orders against any party to enable me entertain an application for interlocutory orders of injunction. I do not therefore even need to go into the merits or otherwise of the application. The same is improperly before the court and is hereby dismissed with costs to the respondents.
W. KARANJA
JUDGE
11/6/2007