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Court of AppealOtherCivil Application No. 42 of 2019

Vehicle and Equipment Leasing Limited v Commercial Bank of Africa Limited [2021] KECA 675 (KLR)

Court of Appeal
23 April 2021
RNR. N. NambuyeWKW. KaranjaHOHannah Okwengu
632 words in judgment
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The bottom line

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Kenya's Court of Appeal marked an injunction application as withdrawn without ruling because events, including the concluded High Court trial, had overtaken it.

What this practically means

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Executive summary

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This was an interlocutory application, by Notice of Motion dated 7th February 2019, by Vehicle and Equipment Leasing Limited seeking an injunction pending the hearing and determination of an intended appeal from a ruling and orders of the High Court (F. Tuiyot, J.) dated 25th January 2019 in Milimani Commercial Court Civil Suit No. 390 of 2018. The application was supported by an affidavit of Susan Muthoni and opposed by a replying affidavit of Jacob Owuor Ogola sworn on 22nd March 2019. When the application came up for virtual canvassing on rival pleadings, the registry drew the Court's attention to correspondence between the parties' advocates. The applicant's advocates (Mbaya, Agnes on behalf of Fraser and Kenneth) communicated on 19th February 2021 that the High Court suit had been fully heard and concluded on 5th November 2020, with submissions due by 25th March 2021, and that the substantive appeal, Civil Appeal No. 102 of 2019, had been scheduled but taken out of the hearing list; they proposed the application be marked as overtaken by events. The respondent's advocates (Muraguri & Muraguri) confirmed on 10th March 2021 that the appeal was alive, submissions filed, and requested that the appeal be heard instead. The Court, comprising Nambuye, Karanja and Okwengu JJ.A., did not determine the application on merit. Satisfied that it had been overtaken by events, and noting no formal request for withdrawal by the applicant, the Court invoked its inherent power under Rule 1(2) of its Rules to mark the application as withdrawn under Rule 52, with costs of the application in appeal No. 102 of 2019. The decision below was not disturbed; the substantive appeal remains pending.

Key legal issues

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01

Whether the application for injunction pending appeal could be determined on merit after the underlying suit had been fully heard in the High Court

Holding

No. The application had been overtaken by events and was marked as withdrawn under the Court's inherent powers rather than determined on merit.

Reasoning

The registry drew to the Court's attention correspondence from both parties' advocates showing that the High Court suit from which the intended appeal arose had proceeded to full hearing and concluded on 5th November 2020, with submissions directed to be filed by 25th March 2021. The applicant's own advocates had proposed marking the application as overtaken by events, and the respondent confirmed the substantive appeal, Civil Appeal No. 102 of 2019, remained alive with written submissions filed. In those circumstances the Court declined to canvass the application on merit.

p. 1

Legal principles established

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  • Where an interlocutory application has been overtaken by events and the applicant has not sought its withdrawal, the Court may invoke its inherent power under Rule 1(2) of its Rules to mark the application as withdrawn under Rule 52.

Court orders

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  1. 1.The application dated 7th February 2019 was marked as withdrawn under Rule 52 of the Court's Rules, invoking the Court's inherent power under Rule 1(2)
  2. 2.Costs of the application in appeal No. 102 of 2019
On appeal from
High Court of Kenya
Milimani Commercial Court Civil Suit No. 390 of 2018
Jurisdiction invoked
Inherent power of the Court under Rule 1(2) of the Court of Appeal Rules, invoked to mark the application as withdrawn under Rule 52

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Vehicle and Equipment Leasing Limited v Commercial Bank of Africa Limited [2021] KECA 675 (KLR)", Case Analysis (2021). Civil Application No. 42 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/675/eng@2021-04-23

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