[1987] KECA 79 (KLR)
The court held that the established practice is to grant an injunction to preserve the subject-matter pending appeal, unless special circumstances dictate otherwise. In this case, no such special circumstances were shown. The court found that the body could be preserved for another two months, eliminating the...
Source-derived case information.
- Citation
- [1987] KECA 79 (KLR)
- Parties
- Applicant: Otieno; Respondent: Ougo & Another
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 18 of 1987
- Procedural Posture
- Stay Application / Application for Interlocutory Injunction Pending Appeal
- Outcome
- Application allowed.
- Judges
- EN Juma, HG Platt, JM Gachuhi
- Legal Topics
- Interlocutory Injunctions, Stay of Execution, Preservation of Subject Matter
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Otieno
Applicant
Ougo & Another
Respondent
Procedural Posture
Stay Application / Application for Interlocutory Injunction Pending Appeal
Legal Issues
- 1 Whether an interlocutory injunction should be granted to preserve the subject-matter pending appeal.
- 2 Whether there are special circumstances justifying refusal of the injunction.
Ratio Decidendi
The court held that the established practice is to grant an injunction to preserve the subject-matter pending appeal, unless special circumstances dictate otherwise. In this case, no such special circumstances were shown. The court found that the body could be preserved for another two months, eliminating the necessity to risk exhumation. The court also agreed with the respondent's counsel that the applicant should proceed expeditiously to prepare and file the record of appeal, and noted the applicant's undertaking to do so within 28 days. Accordingly, the application for stay was allowed to ensure that the appeal, if successful, would not be rendered nugatory.
Court Disposition
Application allowed.
Orders
- The application is allowed in terms of paragraph 1 and 2 of the notice of motion.
- The body shall remain in the City Mortuary until further order of this court.
Full Case Text
Judgment text and source record
22 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: NYARANGI, PLATT & GACHUHI JJA)
CIVIL APPLICATION NO. NAI 18 OF 1987
OTIENO……………………………… APPLICANT
VERSUS
OUGO & ANOTHER….…………..RESPONDENT
(Application for stay of execution pending an appeal in the High Court at Nairobi, Bosire J)
JUDGMENT
In form this is an application for an interlocutory injunction under Rule 5(2) (b) of the Rules of the Court. We find no difficulty in disposing of the application on the basis of the established practice of this court as evidenced in the decision in Maheschandra Shamjibhai Gheewala v Aruna B Gheewala and others, Civil Application No Nai 127 of 1986 and M M Butt v Rent Restriction Tribunal, Civil Application No Nai 6 of 1979. The usual rule is that an injunction is granted to preserve the subject-matter pending the hearing and the determination of the action so that the rights if any of an appellant are safeguarded to prevent the appeal, if successful, from being nugatory. There are no special circumstances which would cause us to decide differently because, fortunately, the body can be preserved for another two months or so and hence there is no necessity to risk exhumation.
The point taken by Mr Kwach on behalf of the respondents is that the applicant ought to proceed expeditiously to prepare the record of the intended appeal and have the same filed in the registry of this court. With that we agree and we are grateful to Mr Khaminwa for his offer to lodge the record of appeal within 28 days from today.
We allow the application and order in terms of paragraph 1 and 2 of the notice of motion. The body shall remain in the City Mortuary until further order of this court. No order as to costs.
Dated and Delivered at Nairobi this 18th day of February, 1987
J.O NYARANGI
…………...…….
JUDGE OF APPEAL
H.G PLATT
……………...….
JUDGE OF APPEAL
J.M GACHUHI
…………...…….
JUDGE OF APPEAL