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ELCPartially Allowed· [2017] KEELC 189 (KLR)

Samwel Orwa Wayuga v Church Commissioners of Kenya of The Anglican Church of Kenya [2017] KEELC 189 (KLR)

Environment and Land Court
29 June 2017
GOG. M. A. Ongondo
446 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court extended a suspended injunction by sixty days, showing courts protect appellants from irreparable harm while appeals are prepared.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Migori delivered by G. M. A. Ongondo J on 29 June 2017 in a Notice of Motion dated 23 June 2017 by the Defendant/Applicant. The Applicant, a religious organization, sought among other orders a stay of execution of the judgment and decree of 27 June 2016 - particularly its limb on permanent injunction - pending the intended appeal to the Court of Appeal, and, as order No. 2, an extension of the suspension of the implementation and/or enforcement of the permanent injunction pending the hearing of the application. The judgment had been prepared by S. Okongo J and delivered by J. Mutungi J at Kisii ELC on 27 June 2016; the twelve-month suspension period of the permanent injunction had elapsed. The Plaintiff/Respondent was duly served with an affidavit of service sworn on 28 June 2017 but was absent without reason. Counsel, Mr. Ochwangi, cited Giella v Cassaman Brown (1973) EA 358 and cited the delay in typing proceedings for preparation of the record of appeal. The court found the application especially merited as regards order number 2 and extended the suspension of the permanent injunction for sixty days, directed urgent supply of certified proceedings to the Applicant's counsel, fixed mention for 20 September 2017 for directions, and ordered service on the Plaintiff/Respondent's counsel. No costs order was made.

Key legal issues

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01

Whether to extend the suspension of the permanent injunction pending the intended appeal

Holding

The court extended the suspension of the permanent injunction for sixty days, citing the risk of irreparable harm and the delay in typing proceedings for the record of appeal

Reasoning

The judge noted that the twelve-month period of the suspended permanent injunction had elapsed since the judgment of S. Okongo J (delivered by J. Mutungi J on 27/6/2016). Counsel for the Applicant cited the Giella v Cassaman Brown principles and explained that delay in typing proceedings had hindered preparation of the record of appeal. Weighing the risk of irreparable harm to the religious organization, the court found the application merited in respect of the extension and granted sixty days only, with directions for urgent typing of proceedings and a mention date.

p. 1

Legal principles established

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  • Extension of a suspended injunction pending appeal may be justified where the applicant would suffer irreparable harm, consistent with the principles in Giella v Cassaman Brown

Court orders

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  1. 1.The period of suspension of the permanent injunction and/or stay of the same further to judgment delivered on 27/6/2016 is extended for sixty (60) days from the date hereof
  2. 2.Certified copies of proceedings be supplied to the Defendant /Applicant's counsel urgently
  3. 3.Mention on 20/9/2017 for directions
  4. 4.The Plaintiff / Respondent's counsel be served

Authorities

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Legislation

  • Civil Procedure RulesOrders 1-8 of the Notice of Motion (rules invoked not specified in the judgment)

Cases cited (1)

  • Giella =vs= Cassaman Brown
    (1973) EA 358
Jurisdiction invoked
Not stated in the judgment (inherent/appellate-adjunct jurisdiction pending intended appeal to the Court of Appeal)

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, "Samwel Orwa Wayuga v Church Commissioners of Kenya of The Anglican Church of Kenya [2017] KEELC 189 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/189/eng@2017-06-29

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