[2016] KEHC 5309 (KLR)
The court found that the applicant had allowed the ex parte injunction orders to lapse by relying on a stay of execution from the Court of Appeal, and that the law only permits reinstatement or extension of such orders by consent of the parties. Since the respondent opposed the reinstatement, and the applicant was...
Source-derived case information.
- Citation
- [2016] KEHC 5309 (KLR)
- Parties
- Plaintiff: Samuel Kamau Macharia; Defendant: Ali Khan Muses; Defendant: Estate Sonrisa Limited (Wrongly sued as Estate of Sonrisa Limited); Defendant: Registrar – Kwale (Sued through the Attorney General)
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 30 of 2014
- Procedural Posture
- Civil Suit / Ruling on Application for Reinstatement of Injunction and Stay of Execution
- Outcome
- Application dismissed in part; execution stayed until delivery of pending ruling; costs to respondent.
- Judges
- AA Omollo
- Legal Topics
- Interlocutory Injunctions, Stay of Execution, Abuse of Process, Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Kamau Macharia
Plaintiff
Ali Khan Muses
Defendant
Estate Sonrisa Limited (Wrongly sued as Estate of Sonrisa Limited)
Defendant
Registrar – Kwale (Sued through the Attorney General)
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Reinstatement of Injunction and Stay of Execution
Legal Issues
- 1 Whether the court has jurisdiction to reinstate lapsed ex parte injunction orders.
- 2 Whether the applicant is abusing the court process by seeking similar orders from different courts.
- 3 Whether the pending ruling should be prioritized and execution stayed until its delivery.
Ratio Decidendi
The court found that the applicant had allowed the ex parte injunction orders to lapse by relying on a stay of execution from the Court of Appeal, and that the law only permits reinstatement or extension of such orders by consent of the parties. Since the respondent opposed the reinstatement, and the applicant was essentially seeking to use both the High Court and the Court of Appeal to maintain a status quo, the court held this to be an abuse of process. The court further held that it had no jurisdiction to reinstate the lapsed orders in the absence of consent. However, to prevent the pending ruling from being rendered academic, the court exercised its discretion to halt execution until...
Court Disposition
Application dismissed in part; execution stayed until delivery of pending ruling; costs to respondent.
Orders
- The application to reinstate the injunction orders is dismissed.
- Execution process is halted until 30th June 2016 when the pending ruling will be delivered.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC CIVIL SUIT NO. 30 OFO 2014
SAMUEL KAMAU MACHARIA...................................................................................................PLAINTIFF
-VERSUS-
ALI KHAN MUSES
ESTATE SONRISA LIMITED(Wrongly sued as Estate of Sonrisa Limited)
REGISRAR – KWALE (Sued through the Attorney General)..........................................DEFENDANTS
RULING
The notice of motion application filed under Order 40 rule 1, 2, 3, of the Civil Procedure and Section 1A, 3A and 34 of the Civil Procedure Act and Section 13 of the ELC Act seeks orders for this Court to re – instate orders of temporary injunction issued on 26. 1.2015 and lastly extended on 20. 4.2015. He urged the Court to extend the orders until the ruling of the application dated 25. 1.2015 is delivered.
The applicant avers the orders were not extended because he had obtained stay of execution orders from the Court of Appeal for a period of 12 months which stay lapsed on 30. 4.2016. He further sought that the pending ruling be given a date of delivery on priority basis. The applicant relies on the affidavit sworn by Iwona Strzelecka and the grounds on the face of the application.
Mrs Oluoch – Wambi advocate submitted that the Applicant is apprehensive the plaintiff may proceed with execution if the injunction orders are not re - instated. Mr Orenge advocate in opposing the application submitted that if this Court addresses the issue at hand, then this Court will be interfering with the jurisdiction of the Court of Appeal. That the applicant returning to this Court is gross abuse of the Court process.
Mr Orenge also submitted that this Court lacks jurisdiction to grant the orders sought as the applicant is asking this Court to review the decision of the Court of Appeal. He urged this Court to find the applicant mischievous and dismiss the application. Mrs Wambi in reply submitted that their application of 25. 1.15 never sought application for stay of execution.
The question for me to determine is whether there are orders capable of being re – instated and if so whether it is within this Court's jurisdiction to re – instate them. The parties agree the order was not extended or pursued by the applicant because he had obtained a stay order from the Court of Appeal which essentially served the same purpose as the injunctive order. The applicant also annexed documents that he has filed an application for extension of the stay orders before the Court of Appeal. It comes out clear that the applicant has returned to this Court to fill the vacuum caused by the lapse of the stay orders issued by the Court of Appeal. The applicant is using both Courts to sustain a status quo. In my view this is a clear abuse of the Court process – hoping from one Court to another seeking essentially similar orders.
Further the applicant submitted that they did not file this application earlier because they were having stay of execution orders from the Court of Appeal. The Court of Appeal did not grant any exparte orders when the application for extension was placed before it. Will granting the orders sought amount to over stepping my mandate ? The previous orders were issued based on an application that is pending before me. Granting the order will not amount to exceeding jurisdiction as submitted by the Respondent as it is within the subject pending my determination except that this limb of the application was not pursued by the Applicant when that application was argued inter partes.
The law provides that exparte orders can only be extended by consent of the parties. That opportunity to extend those orders pending the ruling was lost when the applicant abandoned the existing orders. The said orders can only be re – instated again by consent of the parties, as provided under Order 40 rule 2. In this instance, the respondent has opposed the re – instatement of those orders. The exparte orders having lapsed there is no order for this Court to re – instate unless by consent.
On the prayer that the pending ruling be delivered on priority basis, I do make an order that same will be delivered on 30th June 2016. In the interest of justice and so that the ruling pending is not rendered into an academic exercise, I do exercise my discretion under section 3 and 3A of the Civil Procedure Act and order that the execution process be halted until 30. 6.16 when the ruling will be rendered. Cost of this application is awarded to the Respondent.
Ruling dated and delivered at Mombasa this 10th day of May 2016
A. OMOLLO
JUDGE