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ELCDismissedNotice of Motion dated 8th May 2018 (arising from judgment delivered 18th April 2018; reference to CMCC NO. 3321 of 2009)· [2019] KEELC 4687 (KLR)

Bartholomew Mwanyungu & 3 others v Florence Dean Karimi [2019] KEELC 4687 (KLR)

High Court of Kenya
8 February 2019
CYC.K. Yano
1,898 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court refused to protect a Mtwapa plot pending appeal, ruling that only the Court of Appeal can grant injunctions against the High Court's own judgments.

What this practically means

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Executive summary

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By Notice of Motion dated 8th May 2018 under Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, the applicant sought an injunction pending appeal restraining the appellants from entering upon, occupying, distributing, alienating or dealing adversely with PLOT NO.KILIFI/MTWAPA/774B. The application followed a judgment of the High Court (Yano J) dated 18th April 2018 which set aside the judgment in CMCC NO. 3321 of 2009 and dismissed the applicant's suit; a notice of appeal to the Court of Appeal was lodged on 3rd May 2018. The applicant argued that substantial loss would ensue if the property were sold or her developments demolished, relying on Kenya Shell Ltd v Benjamin Karugu Kibiru and Antoine Ndiaye v African Virtual University, and urged the balance of convenience. The respondents raised a preliminary objection contending that the injunctive relief sought was not contemplated by Order 42 Rule 6 and that jurisdiction lay with the Court of Appeal under Rule 5(2)(b). The Court held that Order 42 Rule 6(6) empowers the High Court to grant a temporary injunction only when exercising its appellate jurisdiction; since the intended appeal lies against the High Court's own decision to the Court of Appeal, where a notice of appeal had been lodged, jurisdiction rested exclusively with the appellate court. The motion was found improperly before the Court and dismissed with costs to the respondents.

Key legal issues

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01

Jurisdiction of the High Court to grant an injunction pending an intended appeal against its own judgment

Holding

The Court has no jurisdiction to grant the injunction sought because it is not exercising appellate jurisdiction; the applicant has filed a Notice of Appeal in the Court of Appeal, which alone may grant such relief.

Reasoning

Order 42 Rule 6(6) empowers the High Court to grant a temporary injunction only in the exercise of its appellate jurisdiction, i.e. on an appeal from a subordinate court. Here the applicant seeks to preserve the subject matter pending an appeal to the Court of Appeal against the High Court's own judgment of 18th April 2018, so the Court is not exercising appellate jurisdiction. Under Rule 5(2)(b) of the Court of Appeal Rules, injunctions in civil proceedings where a Notice of Appeal has been lodged lie with the Court of Appeal.

p. 3

Legal principles established

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  • The High Court may grant a temporary injunction under Order 42 Rule 6(6) only when exercising its appellate jurisdiction over a subordinate court's decision; where the High Court's own decision is the subject of an intended appeal to the Court of Appeal, the power to grant an injunction pending appeal rests with the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules

Court orders

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  1. 1.The Notice of Motion dated 8th May 2018 is dismissed with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 42 Rule 6(1), (2), (3), (4), (5), (6)
  • Civil Procedure RulesOrder 40 Rules 1 and 2
  • Court of Appeal RulesRule 5(2)(b); Rule 75

Cases cited (2)

  • Kenya Shell Ltd –v- Benjamin Karugu Kibiru & Another
    (1996) eKLR
  • Antoine Ndiaye –v- African Virtual University
    (2015) eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bartholomew Mwanyungu & 3 others v Florence Dean Karimi [2019] KEELC 4687 (KLR)", Case Analysis (2019). Notice of Motion dated 8th May 2018 (arising from judgment delivered 18th April 2018; reference to CMCC NO. 3321 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4687/eng@2019-02-08

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