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ELCDismissedNot stated in the judgment (appeal from Eldoret Chief Magistrate's Court; application dated 4th November 2019)· [2020] KEELC 3661 (KLR)

Norman Mwangi Wambugu t/a Keja Inn Bar & Restaurant & another v Group Power Company Ltd [2020] KEELC 3661 (KLR)

High Court of Kenya
23 January 2020
MOM. A. Odeny
1,402 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court refused to reinstate an injunction the applicant had already lost in a lower court and never appealed, calling the repeat application res judicata.

What this practically means

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Executive summary

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This is a ruling of the High Court at Eldoret (M. A. Odeny, J) on an application dated 4th November 2019 by the appellant seeking an interim injunction restraining the respondent from evicting, denying access to, or interfering with the appellant's occupation of land parcel Uasin Gishu/Kimumu Settlement Scheme/7042 pending the hearing and determination of an appeal from a subordinate court. Counsel for the applicant invoked Order 42 rule 6(6) of the Civil Procedure Rules, 2010, and relied on authorities including Stanley Kangethe v Ton Keter, Suleiman v Amboseli Resort, Zainab Ayub Mohamed v Rafiki Micro Finance and Moses Kibiego Yator v Eco Bank, arguing that the appeal would be rendered nugatory without the injunction and that the lower-risk-of-injustice course was to maintain the status quo. The respondent opposed on two grounds: that the application was res judicata, a similar application dated 19th June 2019 having been dismissed by the Chief Magistrate, Hon. Charles Obulutsa, on 11th October 2019, citing Henderson v Henderson and Section 7 of the Civil Procedure Act; and that the threshold for stay was not met. The court framed a single issue - res judicata - and found that an identical injunction application had been heard and dismissed by a competent court and that no appeal was lodged against that ruling. The court held it could not grant orders already declined, and dismissed the application with costs to the respondent.

Key legal issues

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01

Res judicata in respect of an interlocutory injunction application pending appeal

Holding

The application is res judicata because a similar injunction application between the same parties was heard and dismissed by the Chief Magistrate's Court and no appeal was preferred against that ruling.

Reasoning

Section 7 of the Civil Procedure Act bars a court from trying a matter directly and substantially in issue in a former suit between the same parties, heard and finally decided by a competent court. The application dated 19th June 2019 seeking substantially similar prayers was dismissed with costs on 11th October 2019 by Hon. Charles Obulutsa, CM. The appellants did not appeal that ruling; hence the High Court could not grant orders already declined. Procedures must be followed for certainty and to avoid abuse of court process.

p. 3

Legal principles established

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  • A court exercising appellate jurisdiction cannot grant an injunction where a similar injunction was declined by the lower court and no appeal was lodged against that ruling

Court orders

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  1. 1.The application dated 4th November 2019 dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 rule 6(6)
  • Civil Procedure ActSection 7

Cases cited (5)

  • Stanley Kangethe vs Ton Keter & 5 Others
    [2013] eKLR
  • Suleiman v Amboseli Resort Limited
    (2004) eKLR
  • Zainab Ayub Mohamed & Another v Rafiki Micro Finance Limited
    Eldoret HCCC. No. 67 of 2018
  • Moses Kibiego Yator v Eco Bank Kenya Limited & 2 Others
    Kisumu Court of Appeal Civil Application no. 2 of 2017
  • HENDERSON -VS- HENDERSON
    (1843 - 60) ALLER 378
On appeal from
Chief Magistrate's Court, Eldoret
null
Jurisdiction invoked
Order 42 rule 6(6) of the Civil Procedure Rules, 2010 - appellate jurisdiction of the High Court to grant temporary injunction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Norman Mwangi Wambugu t/a Keja Inn Bar & Restaurant & another v Group Power Company Ltd [2020] KEELC 3661 (KLR)", Case Analysis (2020). Not stated in the judgment (appeal from Eldoret Chief Magistrate's Court; application dated 4th November 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3661/eng@2020-01-23

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