Stephen Mutugi Mwenje v Municipal Council of Kerugoya & another [2018] KEELC 4295 (KLR)
The bottom line
#Kenya's High Court stopped any sale or development of a disputed Kutus plot until an appeal is decided, protecting the appellant's claim.
What this practically means
#Executive summary
#Key legal issues
#Whether conditions for temporary injunction pending appeal were met
The appeal was not frivolous and refusal would render it nugatory; injunction granted
The Court applied the principles in Patricia Njeri v National Museum of Kenya, Mukuma v Abuoga and Butt v Rent Restriction Tribunal, together with the Giella v Cassman Brown test. It found competing claims over the same plot, a consent order favouring the Applicant against the 1st Respondent, and uncertainty whether plots 316A and 201A are the same. Preserving the status quo was necessary to avoid rendering the appeal nugatory and to prevent hardship to either side.
Whether the application was procedurally proper
Properly before the Court, there being compliance with Section 79G
Judgment was delivered on 25th August 2017 and the memorandum of appeal filed on 25th September 2017, within the statutory period under Section 79G of the Civil Procedure Act, and Order 42 Rule 6(6) empowers the Court in appellate jurisdiction to grant temporary injunctions.
Legal principles established
#- Injunction pending appeal is a discretionary remedy refused where the appeal is frivolous or where it would inflict greater hardship than it avoids
- Where a party is exercising his right of appeal, the Court ought to see that the appeal is not rendered nugatory
- In such disputes the Court should preserve the status quo pending appeal
Court orders
#- 1.Temporary injunction restraining the 2nd Respondent from selling, disposing, alienating, wasting, developing and/or dealing with plot No. 316A KUTUS (referred to by the 2nd Respondent as plot No. 201A KUTUS) pending hearing and determination of the appeal
- 2.Applicant to file a record of appeal within forty five (45) days from the date of the ruling; appeal to be fixed for directions within thirty (30) days from filing the record of appeal
- 3.Either party at liberty to apply
- 4.Costs of the application to abide by the results of the appeal
- On appeal from
- Chief Magistrate's Court, Kerugoya
- PMCC No. 192 of 2011
- Jurisdiction invoked
- Order 42 Rule 6(6) of the Civil Procedure Rules (appellate jurisdiction to grant temporary injunction), Section 79G of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Mutugi Mwenje v Municipal Council of Kerugoya & another [2018] KEELC 4295 (KLR)", Case Analysis (2018). Notice of Motion dated 16th October 2017 (appeal from Kerugoya PMCC No. 192 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4295/eng@2018-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.