[2016] KEHC 1290 (KLR)
The court held that since the appellant had already filed a similar application for stay in the lower court, which was still pending, she was not entitled to seek the same relief in the High Court. The absence of new facts or circumstances meant that the application before the High Court amounted to an abuse of...
Source-derived case information.
- Citation
- [2016] KEHC 1290 (KLR)
- Parties
- Appellant: Pauline Wanjiru Kinyanjui; Respondent: Real People Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 272 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay and Injunction Pending Appeal
- Outcome
- application dismissed with costs to the respondent
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Injunctions, Stay of Execution, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pauline Wanjiru Kinyanjui
Appellant
Real People Kenya Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay and Injunction Pending Appeal
Legal Issues
- 1 Whether the High Court should grant a stay of execution of the lower court's ruling when a similar application is pending in the lower court.
- 2 Whether the appellant is entitled to an injunction restraining the respondent from dealing with the subject motor vehicle.
Ratio Decidendi
The court held that since the appellant had already filed a similar application for stay in the lower court, which was still pending, she was not entitled to seek the same relief in the High Court. The absence of new facts or circumstances meant that the application before the High Court amounted to an abuse of process. The court further noted that the appellant should exhaust the remedies available in the lower court before approaching the appellate court. Consequently, the application for stay and injunction was found to be misplaced and lacking in merit, and was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for stay and injunction is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 272 OF 2016
PAULINE WANJIRU KINYANJUI …………. APPELLANT
VERSUS
REAL PEOLE KENYA LIMITED ……………. DEFENDANT
RULING
The appellant filed an application for injunction in the lower court. The application was dismissed. Following that dismissal, she filed another application to stay the ruling of the lower court. That application I am told is still pending before the same court.
There is yet another application before me for a stay order of the same ruling by the lower court. Additionally, the appellant has sought an order of injunction against the respondent or his agents to restrain it from dealing with motor vehicle registration No. KBU 415W Toyota Hilux to her detriment.
The pleadings relating to the matter in the lower court have not been annexed and it is not easy for this court to tell what other orders were sought by the appellant other than the injunction orders. The fact that there is a pending application seeking the same orders in the lower court disentitles the applicant from getting any reliefs from this court. Unless there are new facts not brought before the court, in the earlier application which was dismissed, the applicant cannot file a fresh application. This would lead to abuse of the court process.
From the little I can decipher after reading the memorandum of appeal filed herein, the dispute between the two parties is based on interest payable by the appellant to the respondent on some monetary transaction.
The appellant has a forum in the lower court which she may exhaust if she so wishes before coming to this court in the event the lower court does not decide in her favour. I find that the present application is misplaced and lacks merit. The same is therefore dismissed with costs to the respondent.
Orders accordingly.
Dated, signed and delivered at Nairobi this 10h Day of November, 2016.
A. MBOGHOLI MSAGHA
JUDGE