Tahir Sheikh Said Investments Ltd v Administrator, TSS Grain Millers Ltd & 2 others [2019] KEELC 1762 (KLR)
The bottom line
#Once a Kenyan court strikes out your entire case, it cannot grant injunctions or inhibitions pending appeal—those requests must go to the Court of Appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC retains jurisdiction to grant a temporary injunction pending appeal after striking out the plaintiff's suit
No - the court is functus officio once the suit is struck out; the Madhupaper line of authority applies only where the main suit remains alive
The court analysed Eustace Kagau, Chembe Katana Changi and Madhupaper. Madhupaper concerned an application pending appeal to the Court of Appeal where the main suit was still alive. Here the entire suit had been struck out, so no suit existed in which to anchor an injunction. The Court of Appeal itself has power to preserve the status quo. The cases cited by the applicant were all distinguishable.
Whether an inhibition may issue under Section 68 of the Land Registration Act
No - no inhibition can issue at this stage because there is no pending suit to support it
The 3rd defendant argued Section 68 is available only to a party filing suit, not one on appeal, and presupposes an existing suit. The court agreed, holding that with the suit struck out the inhibition has nothing to attach to pending the appeal.
Whether jurisdiction can be conferred by consent of the parties
No - jurisdiction cannot be conferred by consent where none exists
In Kingorani Investments counsel had agreed the High Court had jurisdiction, but the court noted that agreement could not create jurisdiction. This point was made while dismissing Kingorani as unhelpful on the jurisdictional question.
Legal principles established
#- A court that has determined a suit (including by striking it out) is functus officio and lacks jurisdiction to grant an injunction pending appeal in that suit; the remedy lies before the appellate court
- An order of injunction or inhibition can only issue where there is an existing suit
Court orders
#- 1.Both applications (notices of motion dated 13th December 2018 and 15th January 2019) dismissed for want of jurisdiction
- 2.Each party to meet their own costs of the applications
- Jurisdiction invoked
- Section 68 of the Land Registration Act and Sections 1A, 1B, 3A & 3B of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wakoyo & 87 others v County Government of Mombasa & another[2023] KEELC 17030 (KLR)26 Apr 2023
- William Olotch Owako v Christopher Osiro Ogutu & another [2022] KEELC 1505 (KLR)[2022] KEELC 1505 (KLR)10 Feb 2022followed
- Gilbert Kimani Nyumu v Gidion Kipkoech Kiptisia [2020] KEELC 3039 (KLR)[2020] KEELC 3039 (KLR)23 Apr 2020
Cite this brief
#Cite this brief
Caselaw, "Tahir Sheikh Said Investments Ltd v Administrator, TSS Grain Millers Ltd & 2 others [2019] KEELC 1762 (KLR)", Case Analysis (2019). Not stated in judgment (Mombasa ELC; related to Mombasa HCC No. 3 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1762/eng@2019-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.