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Court of AppealDismissedCivil Appeal [Application] No. 44 of 2008

Patrick Chapia Tindi & another v Housing Finance Company of Kenya Ltd & 2 others [2011] KECA 345 (KLR)

Court of Appeal of Kenya
4 March 2011
ROR. S. C. OmoloEOE. O. O'KubasuPWP. N. Waki
861 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to grant an injunction to litigants who ignored the conditions attached to an earlier High Court injunction, calling their approach an abuse of process.

What this practically means

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Executive summary

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The applicants, Patrick Chapia Tindi and Beatrice Anyango Otieno, claimed ownership of L.R. No. 3643/I/MN by adverse possession since 1988 and filed an originating summons in the High Court at Mombasa in 2004 seeking a declaration that the respondents' title was extinguished. Their simultaneous application for an interim injunction was dismissed by Khaminwa, J on 26th May 2006 for failure to demonstrate a prima facie case. They lodged a notice of appeal, then returned to the High Court, where Maraga, J granted a temporary injunction pending appeal on strict conditions: no further permanent development of the land, and filing and serving the record of appeal within 45 days, failing which the application would automatically stand dismissed. The applicants filed the record within 45 days but failed to serve it within that period, and did not seek enlargement of time from the superior court. Instead, they moved the Court of Appeal at Mombasa by notice of motion dated 23rd April 2008 seeking an injunction pending the appeal. The Court of Appeal (Omolo, O'Kubasu and Waki, JJ.A) refused the application in a single ruling of the court. It held that the applicants had already obtained the very injunction they now sought, on terms, and having failed to comply with those terms they were abusing the process of the court by coming to the appellate court as if the High Court orders did not exist. The motion was dismissed with costs to the respondents. The underlying originating summons remained pending unheard in the High Court; the applicants remained free to seek enlargement of time there.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants were entitled to an injunction pending the hearing and determination of their intended appeal against the High Court ruling of 26th May 2006
  2. 2.Whether the applicants, having failed to comply with the conditional injunction granted by Maraga, J, could properly approach the Court of Appeal for the same relief

Key legal issues

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01

Whether an applicant for an injunction pending appeal who has breached the conditions of an earlier injunction may renew the application in the Court of Appeal

Holding

No. The applicants had already obtained the injunction they sought, on terms, from Maraga, J, and having failed to comply (by not serving the record of appeal within 45 days) they could not come to the Court of Appeal as if those orders did not exist.

Reasoning

The High Court had granted the injunction on condition that the applicants file and serve the record of appeal within 45 days and refrain from permanent developments, failing which the application would automatically stand dismissed. The applicants filed but did not serve the record within that period and did not seek enlargement of time from the superior court. Coming to the Court of Appeal for the same relief instead was held to be an abuse of the court's process.

p. 2

Legal principles established

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  • A litigant who obtains interlocutory relief on conditions and fails to comply with those conditions cannot seek the same relief from the appellate court as if the orders of the superior court did not exist; to do so is an abuse of process.

Court orders

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  1. 1.The notice of motion dated and lodged in the Court on 23rd April 2008 is disallowed
  2. 2.The motion is dismissed with costs to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RO
majority

Wrote the judgment

EO
majority
PW
majority
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 50 of 2005 [OS]
Jurisdiction invoked
Intended appeal to the Court of Appeal from the High Court; application for injunction pending appeal under the Court of Appeal rules

Relief refused

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Injunction pending the hearing and determination of the intended appeal restraining the respondents from dealing with L.R. No. 3643/I/MN

The applicants had already obtained an injunction from the High Court on terms and failed to comply with those terms; their application amounted to an abuse of the court's process

p. 2

Costs

The motion is dismissed with costs to the respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

They are abusing the process of the court in coming here and after having failed to comply with the orders made by the High Court. The applicants are in fact behaving as if those orders did not exist.
p. 2Abuse of process in bypassing High Court orders
Accordingly, we disallow the notice of motion dated and lodged in this Court on 23rd April, 2008. We order that the said motion be and is hereby dismissed with costs to the respondents.
p. 2Final orders - dismissal with costs

Issues in the judgment

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minor

The judgment states the applicants lodged a notice of appeal on 30th June, 2005 against a ruling dated 26th May, 2006, an apparently impossible chronology likely reflecting a typographical error in one of the dates.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Patrick Chapia Tindi & another v Housing Finance Company of Kenya Ltd & 2 others [2011] KECA 345 (KLR)", Case Analysis (2011). Civil Appeal [Application] No. 44 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2011/345/eng@2011-03-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.