Maisha Investments Limited v Mohamed Hassanali Alimohamed Janmohamed & another [2020] KEELC 997 (KLR)
The bottom line
#Once a Kenyan High Court has issued its final judgment, only the Court of Appeal can freeze a property sale pending appeal — the trial court has no such power.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court can grant an injunction pending appeal after delivering final judgment
It cannot; the power to grant an interlocutory injunction under Order 40 Rule 1 is spent upon final determination of the suit, and such an order pending appeal against a final judgment is for the Court of Appeal.
Order 40 Rules 1, 2 and 3 govern injunctions issued pending the hearing of a suit. Once the suit has been heard and determined, the court's interlocutory power is exhausted. The court cannot be asked to assess the arguability of an appeal against its own conclusive finding dismissing the plaintiff's claim; that function belongs to the Court of Appeal.
Whether Order 42 Rule 6(6) applied
It did not, because the High Court is not seized of the intended appeal; the provision empowers a court only when sitting as an appellate court.
Order 42 Rule 6(6) applies where the court sitting as an appellate court is asked for an injunction pending the hearing of an appeal before it. Here the plaintiff's intended appeal lay to the Court of Appeal and this court was not seized of it, so the provision was inapplicable.
Whether leave to appeal was necessary
Leave was unnecessary because the plaintiff has an automatic right of appeal to the Court of Appeal against the High Court's final judgment.
The defendants contended, correctly in the court's view, that an appeal against the judgment lay as of right. The prayer for leave was therefore superfluous and could not be granted.
Whether Madhupaper International Limited v Kerr supported the application
The decision was distinguishable; it concerned an injunction pending appeal from a refusal of an interlocutory injunction, not from a final judgment.
In Madhupaper the Court of Appeal held that the High Court may grant an injunction pending appeal where it had dismissed an application for an interlocutory injunction, to prevent the appeal being rendered nugatory. Here the court was asked for an injunction pending appeal against a final judgment dismissing the suit, which is a different situation, so the authority was distinguished.
Legal principles established
#- The High Court's power under Order 40 Rule 1 to grant an interlocutory injunction is spent once the suit has been heard and conclusively determined; an injunction pending appeal against a final judgment can only be granted by the Court of Appeal.
- Order 42 Rule 6(6) empowers a court only when sitting as an appellate court seized of the appeal before it.
- The inherent jurisdiction under Section 3A of the Civil Procedure Act cannot be invoked where the party has an adequate remedy under the Court of Appeal Rules.
Court orders
#- 1.The plaintiff's Notice of Motion application dated 14th November 2019 is dismissed
- 2.Costs of the application awarded to the defendants
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act; Order 40 Rules 1(a), 2 and 3 and Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maisha Investments Limited v Mohamed Hassanali Alimohamed Janmohamed & another [2020] KEELC 997 (KLR)", Case Analysis (2020). Not stated in the judgment (Notice of Motion dated 14th November 2019 in the suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/997/eng@2020-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.