[2017] KEELC 189 (KLR)
The court found that the Defendant/Applicant had demonstrated sufficient grounds for the extension of the suspension of the permanent injunction, as the delay in obtaining proceedings for the appeal was not due to their fault. The court accepted that the Applicant, being a religious organization, would suffer...
Source-derived case information.
- Citation
- [2017] KEELC 189 (KLR)
- Parties
- Plaintiff: Samwel Orwa Wayuga; Defendant: The Church Commissioners of Kenya of the Anglican Church of Kenya
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 56 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Application for Stay and Extension of Suspension of Permanent Injunction Pending Appeal
- Outcome
- Application for extension of suspension of permanent injunction granted.
- Judges
- GMA Ongondo
- Legal Topics
- Permanent Injunction, Stay of Execution, Appeal Procedure, Irreparable Harm
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Orwa Wayuga
Plaintiff
The Church Commissioners of Kenya of the Anglican Church of Kenya
Defendant
Procedural Posture
Notice of Motion / Ruling on Application for Stay and Extension of Suspension of Permanent Injunction Pending Appeal
Legal Issues
- 1 Whether the court should grant a stay of execution of the judgment and decree, specifically the permanent injunction, pending the hearing and determination of the intended appeal.
- 2 Whether the period of suspension of the permanent injunction should be extended due to delays in obtaining proceedings for appeal.
Ratio Decidendi
The court found that the Defendant/Applicant had demonstrated sufficient grounds for the extension of the suspension of the permanent injunction, as the delay in obtaining proceedings for the appeal was not due to their fault. The court accepted that the Applicant, being a religious organization, would suffer irreparable harm if the injunction was enforced before the appeal was heard. The absence of the Plaintiff/Respondent's counsel, despite proper service, left the application unopposed. Applying the principles in Giella v Cassman Brown, the court exercised its discretion to extend the suspension of the permanent injunction for sixty days to allow the Defendant/Applicant to pursue the...
Court Disposition
Application for extension of suspension of permanent injunction granted.
Orders
- The period of suspension of the permanent injunction and/or stay of the same pursuant to the judgment delivered on 27/6/2016 is extended for sixty (60) days from the date of this ruling.
- Certified copies of proceedings to be supplied to the Defendant/Applicant’s counsel urgently.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT AT MIGORI
ELC CASE NO. 56 OF 2017
(FORMERLY KISII ELC CASE NO. 6 OF 2015)
SAMWEL ORWA WAYUGA…………............….…..PLAINTIFF/RESPONDENT
VERSUS
THE CHURCH COMMISSIONERS OF KENYA
OF THE ANGLICAN CHURCH OF KENYA ……..DEFENDANT/APPLICANT
RULING
1. I have heard Mr. Ochwangi counsel for the Defendant / Applicant and studied the entire Notice of Motion dated 23/6/2017. I consider the orders one to eight sought, the grounds of the application and the documents in support of the Notice Motion application.
2. The Plaintiff / Respondent counsel was duly served for inter partes hearing fixed for today. An affidavit of service sworn on 28/6/2017 is in support of the service thereof. The Plaintiff / Respondent’s counsel is absent without any reason or at all.
3. I note the orders sought in the Notice of Motion. Mr. Ochwangi has urged this court to grant Order No. 5 namely:-
“The Honourable Court be pleased to grant an Order of stay of Execution of the Judgment and Decree of this Honourable Court made on the 27th day of June 2016, particularly, the limb thereof touching on the permanent Injunction, pending the hearing and determination of the Intended Appeal to the Honourable Court of Appeal.”
4. The judgment in this matter was prepared by S. Okongo J. It was delivered by J. Mutungi J at Kisii ELC on 27/6/2016. The period of twelve months of the suspended permanent injunction has elapsed. The Defendant / Applicant is a religious organization bound to suffer irreparable harm if the suspended permanent injunction is not extended bearing in mind the holding in Giella =vs= CassamanBrown (1973) EA 358. The reasons given by the Defendant / Applicant’s counsel,m Mr. Ochwangi, include the delay in the typing of proceedings for the preparation of record of appeal. I find the application especially for order number 2 merited. The order reads:-
“Pending the hearing and determination of the instant Application, the Honourable Court be pleased to grant an Extension relating to the Suspension of the Implementation and/or Enforcement of the Order of the Permanent Injunction issued to and/or in favour of the Plaintiff/Respondent herein in terms of the Judgment rendered on the 27th day of June 2016. ”
5. Consequently and for the foregoing reasons, I direct and order as herein under:-
(a) The period of suspension of the permanent injunction and/or stay of the same further to judgment delivered on 27/6/2016 is hereby extended for sixty(60) days from the date hereof.
(b) Certified copies of proceedings be supplied to the Defendant /Applicant’s counsel urgently.
(c ) Mention 20/9/2017 for directions
(d) The Plaintiff / Respondent’s counsel be served.
DELIVERED, SIGNED and DATEDin open court at MIGORI this29thday of June 2017.
G. M. A. ONGONDO
JUDGE
In the presence of:
Mr. Ochwangi counsel instructed by Oguttu Mboya for the Applicant / Defendant -
Tom Otieno; Court Assistant
G. M. A. ONGONDO
JUDGE