Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissednot_stated_in_judgment· [2017] KEELC 3628 (KLR)

Teresa Chebichii Ruto v Talalei Kiptenai [2017] KEELC 3628 (KLR)

High Court of Kenya (Land and Environment division, per the subject matter; the judgment does not state the court name)
2 February 2017
1,961 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
Talalei Kiptenai (applicant) moved the court for a temporary injunction pending appeal, seeking to restrain Teresa Chebichii Ruto (respondent) from fencing the 36 acres which the court, by a ruling of 27th May 2016 and a further order of 2nd December 2016, had directed the Land Surveyor, Uasin Gishu County to demarcate for his utilization pending the respondent's appeal to the Court of Appeal. He asserted a prima facie case, that damages would be inadequate, and that the balance of convenience favoured him, and characterized the fencing as impunity and bad faith designed to defeat the appeal. The respondent opposed, contending that the fencing was complete before she was served with the orders, that fencing was for boundary identification and did not amount to ownership, that the application was a gimmick to supervise her utilization of her portion, and that litigation must come to an end. The court held that Order 40 applies to suits, not appeals; once judgment has been delivered and the matter is on appeal to the Court of Appeal, this court can only grant a temporary injunction under Order 42 rule 6 in respect of appeals from subordinate courts, and is otherwise functus officio, the proper forum being the Court of Appeal. It further held that fencing confers possession, not ownership, so no order was breached, and that the issue of an injunction pending appeal was res judicata given the conditional stay already granted. The application was dismissed with costs to the respondent on 2nd February 2017.

Key legal issues

#
01

Whether the High Court can grant a temporary injunction pending an appeal to the Court of Appeal

Holding

No. Order 40 applies to suits, not appeals; once judgment is delivered the court is functus officio and the injunction application must be made in the Court of Appeal.

Reasoning

The court reasoned that 'suit' under Order 40 means civil proceedings, but appeals are governed by Order 42 and the Court of Appeal Rules. Order 42 rule 6 gives this court power to grant injunctions only in respect of appeals from subordinate courts, not appeals from this court to the Court of Appeal. Having rendered judgment, the court has no residual jurisdiction to restrain parties pending appeal.

p. 3
02

Whether fencing the demarcated 36 acres breached the court orders of 27th May, 2016

Holding

No. Fencing demonstrates possession, not ownership, and the order only granted utilization pending appeal.

Reasoning

Counsel for the applicant argued that fencing signifies ownership rather than possession. The court rejected this, holding that fencing leads to possession, which is precisely what the order for utilization conferred. There were no orders preventing the respondent from fencing, so no breach was established.

p. 4
03

Whether the application is res judicata

Holding

Yes, in so far as injunction pending appeal is concerned, since the court had already granted a conditional stay on cancellation of title pending appeal.

Reasoning

The court found that the question of restraining the respondent pending appeal had effectively been addressed when the court granted a conditional stay on the cancellation of title pending appeal. Re-litigating that protection through an injunction application was barred by res judicata.

p. 4

Legal principles established

#
  • A temporary injunction does not lie under Order 40 where judgment has been delivered and the matter is on appeal; the proper forum is the appellate court.
  • Fencing a portion of land leads to possession and not ownership.

Court orders

#
  1. 1.The application is dismissed
  2. 2.Costs awarded to the respondent

Authorities

#

Legislation

  • Civil Procedure RulesOrder 40 rule 1
  • Civil Procedure RulesOrder 40 rule 2
  • Civil Procedure RulesOrder 42 rule 6
  • Court of Appeal Rules
Jurisdiction invoked
Order 40 and Order 42 rule 6 of the Civil Procedure Rules (application for temporary injunction pending appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Teresa Chebichii Ruto v Talalei Kiptenai [2017] KEELC 3628 (KLR)", Case Analysis (2017). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3628/eng@2017-02-02

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