Teresa Chebichii Ruto v Talalei Kiptenai [2017] KEELC 3628 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the High Court can grant a temporary injunction pending an appeal to the Court of Appeal
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.
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.
Whether fencing the demarcated 36 acres breached the court orders of 27th May, 2016
No. Fencing demonstrates possession, not ownership, and the order only granted utilization pending appeal.
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.
Whether the application is res judicata
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.
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.
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.The application is dismissed
- 2.Costs awarded to the respondent
- 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.