[2021] KECA 593 (KLR)
The Court of Appeal found that its jurisdiction under Rule 5(2)(b) had not been properly invoked because the applicant had not filed a notice of appeal. Without such a notice, the Court could not entertain the application for injunction or stay. Furthermore, the Court observed that the ruling of the lower court did...
Source-derived case information.
- Citation
- [2021] KECA 593 (KLR)
- Parties
- Applicant: Phelomena Warigia Waweru; Respondent: Duncan Wanyoike; Respondent: David Gitahi; Respondent: Joel Mirithi; Respondent: Charles Muhoro
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 125 of 2018
- Procedural Posture
- Injunction Application / Ruling on Application for Injunction and Stay Pending Appeal
- Outcome
- application struck out
- Judges
- GG Okwengu
- Legal Topics
- Injunctive Relief, Stay of Proceedings, Contempt of Court, Appellate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Phelomena Warigia Waweru
Applicant
Duncan Wanyoike
Respondent
David Gitahi
Respondent
Joel Mirithi
Respondent
Charles Muhoro
Respondent
Procedural Posture
Injunction Application / Ruling on Application for Injunction and Stay Pending Appeal
Legal Issues
- 1 Whether the Court of Appeal's jurisdiction under Rule 5(2)(b) was properly invoked without a notice of appeal.
- 2 Whether there were positive orders capable of being stayed or executed following the dismissal of the applicant's motion in the lower court.
- 3 Whether the applicant was entitled to an injunction or stay of proceedings pending appeal.
Ratio Decidendi
The Court of Appeal found that its jurisdiction under Rule 5(2)(b) had not been properly invoked because the applicant had not filed a notice of appeal. Without such a notice, the Court could not entertain the application for injunction or stay. Furthermore, the Court observed that the ruling of the lower court did not result in any positive orders capable of being stayed or executed, as the applicant's motion had been dismissed. Therefore, there was nothing to stay or injunct. The application was thus misconceived and without merit, leading to its being struck out.
Court Disposition
application struck out
Orders
- The notice of motion dated 30th April, 2018 is struck out.
Full Case Text
Judgment text and source record
37 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CIVIL APPLICATION NO. 125 OF 2018
(CORAM: OUKO, OKWENGU & GATEMBU, JJ.A)
PHELOMENA WARIGIA WAWERU............................................APPLICANT
AND
DUNCAN WANYOIKE.........................................................1STRESPONDENT
DAVID GITAHI......................................................................2NDRESPONDENT
JOEL MIRITHI.....................................................................3RDRESPONDENT
CHARLES MUHORO...........................................................4THRESPONDENT
(Being an application for injunction and stay of proceedings in theEnvironment
and Land Case No. 353 of 2017 pending an intended appeal from theRuling
and orders of theEnvironment and Land Court at Nairobi (Obaga, J.)
delivered on 10thApril, 2018
in
ELC No. 353 of 2017)
***********************
RULING OF THE COURT
[1] On 10th April, 2018 the learned Judge (Obaga, J) dismissed a chamber summons dated 27th September 2017 filed by Phelomena Warigia Waweru(the applicant), in which she sought the committal of the respondents into civil jail for disobedience of court orderissued on 27th June 2017. The order allegedly restrained the respondents, their agents or employees from interfering, alienating, disposing, entering, or constructing on LR. No. 10390/5 (suit property) pending the inter parte hearing of the applicant’s application.
[2] The applicant is aggrieved by the dismissal of her application. She has, therefore, moved this Court by way of a notice of motion dated 30th April, 2018 seeking orders under Rule 5(2)(b) of the Court of Appeal Rules, and section 3A of the Appellate Jurisdiction Act of a temporary injunction restraining the respondents from interfering with the suit property, and a further order staying proceedings in Environment and Land Court (ELC) Case No. 353 of 2017, pending the determination of her appeal.
[3] Due to the Covid-19 pandemic, this matter was listed to proceed by way of written submissions on 22nd March, 2021. The parties were duly served with hearing notices through email on 3rd March, 2021 and advised to file their written submissions. However, neither the applicant nor the respondents filed any written submissions. The Court is therefore forced to determine theapplication on the basis of the application, the supporting affidavit and the annexures therefore.
[4] The applicant’s motion having been brought under Rule 5(2)(b) of the Court of Appeal Rules, the jurisdiction of this Court is invoked by the filing of an appeal which is initiated through a notice of appeal. We have perused the application, but have not found any such notice. This means that the applicant is not properly before us as the Court’s jurisdiction has not been properly invoked.
[5] In addition, the ruling dated 10th April 2018, a copy of which was annexed to the applicant’s motion shows that the learned Judge dismissed the applicant’s motion for two reasons. First, that the applicant served the respondents with an extract of the court order which did not contain a penal clause warning of the consequences in case of disobedience. Secondly, that there was no credible evidence of disobedience as the houses alleged to have been constructed in contravention of the court order, were actually old houses which could not have been constructed and completed in a span of four (4) months. This means that the court having dismissed the applicant’s application, no positive orders capable ofexecution were issued. It would therefore be futile for this Court to issue an order of stay of execution as there is nothing to stay.
[6] For these reasons, we find that the notice of motion dated 30th April, 2018 is misconceived and has no merit. It is accordingly struck out.
DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF MAY, 2021.
W. OUKO (P)
...................................
JUDGE OF APPEAL
HANNAH OKWENGU
...................................
JUDGE OF APPEAL
S. GATEMBU KAIRU (FCIArb.)
...................................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
Signed
DEPUTY REGISTRAR