[2004] KEHC 2222 (KLR)
The court found that the application was incompetent because there was no substantive suit filed to support an application for a restraining order under Order 39 of the Civil Procedure Rules. Furthermore, the application did not seek orders of stay nor did it comply with the conditions required under Order 41 Rule...
Source-derived case information.
- Citation
- [2004] KEHC 2222 (KLR)
- Parties
- Appellant: Teresia Kimani; Respondent: Githere Investments Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 944 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Chamber Summons Application for Injunction and Status Quo
- Outcome
- application struck out as incompetent with costs to the respondent
- Legal Topics
- Interlocutory Injunctions, Status Quo Orders, Competency of Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresia Kimani
Appellant
Githere Investments Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Chamber Summons Application for Injunction and Status Quo
Legal Issues
- 1 Whether the application for maintenance of status quo and temporary injunction is competent before the court.
- 2 Whether a restraining order can be granted in the absence of a substantive suit.
- 3 Whether the application complies with the requirements for stay under Order 41 Rule 4.
Ratio Decidendi
The court found that the application was incompetent because there was no substantive suit filed to support an application for a restraining order under Order 39 of the Civil Procedure Rules. Furthermore, the application did not seek orders of stay nor did it comply with the conditions required under Order 41 Rule 4. As such, the court had no jurisdiction to entertain the application, leading to its striking out with costs to the respondent.
Court Disposition
application struck out as incompetent with costs to the respondent
Orders
- The Chamber Summons application is struck out as incompetent.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
9 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL APPEAL NO 944 OF 2003 TERESIA KIMANI ……………………………………….. APPELLANT VERSUS GITHERE INVESTMENTS LIMITED …………….…. RESPONDENT RULING
This is a Chamber Summons application brought under Order 39 of the Civil Procedure Rules and Section 3 A of the Civil Procedure Act for the following two main orders.
1. for maintenance of status quo until the appeal is heard and determined; and 2. for grant of temporary injunction from eviction …
This application is incompetently before this court. If this is an application under Order 39 of the Civil Procedure Rules for a restraining order, there must be a suit filed before an application of this nature can be entertained by a court. There is no suit in existence, hence the application is incompetent.
If there is an application for “stay” under Order 41 Rule 4 it ought to seek orders of “stay” and comply with the conditions laid down in Order 41 Rule 4. It does not do so.
This application is, therefore, incompetently before this court, and is struck out with costs to the Respondent.
Dated and delivered at Nairobi this 21st day of April, 2004.
ALNASHIR VISRAM
JUDGE