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ELCAllowedNot stated in judgment· [2021] KEELC 105 (KLR)

William Kagotho Gachuri v Julius Kanyuku Wanjau & 2 others [2021] KEELC 105 (KLR)

High Court of Kenya
2 December 2021
984 words in judgment
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The bottom line

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The High Court froze the sale of a Komarock plot pending appeal because the appellant moved quickly and offered Kshs.300,000 security for costs.

What this practically means

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Executive summary

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This was a Notice of Motion dated 20th April 2021 by the Appellant, William Kagotho Gachuri, brought under Article 159(2)(d) of the Constitution, sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act and Order 42 rule 6 and Order 22 rule 22 of the Civil Procedure Rules. The Appellant, who had appealed against a judgment delivered on 15th March 2021, sought a temporary injunction restraining the 1st and 2nd Respondents from selling, transferring, auctioning, disposing of or otherwise interfering with Plot No 163/1 Komarock Bridge Jua Kali pending the hearing and determination of the appeal, together with costs. The application was supported by his affidavit and a further affidavit, and opposed through grounds of opposition dated 2nd June 2021. The court canvassed the motion by written submissions following consent directions of 21st July 2021. The sole issue was whether the application was merited. The court applied Order 42 rule 6, including subrule (6) empowering the High Court in its appellate jurisdiction to grant a temporary injunction. It found the application brought without unreasonable delay, noted the Appellant's claim of heavy investment in the property and risk of disposal to third parties, and applied the Focin Motorcycle decision on the offer of security as a mark of good faith. The court found merit in the application and granted a temporary injunction conditional upon the Appellant depositing Kshs.300,000 as security for costs within 45 days, failing which the orders would lapse, with costs of the application abiding the appeal. Delivered at Nairobi on 2nd December 2021 by L. Komingoi, Judge.

Key legal issues

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Whether the Appellant satisfied the conditions for a temporary injunction/stay pending appeal under Order 42 rule 6

Holding

The application was merited: it was brought without unreasonable delay, the Appellant offered security, and the court granted the injunction conditional on deposit of Kshs.300,000 security for costs

Reasoning

The court applied Order 42 rule 6 of the Civil Procedure Rules. It found the judgment appealed from was delivered on 15th March 2021 and the application brought without unreasonable delay. The Appellant claimed heavy investment in the suit property and imminent disposal to third parties, and offered security for due performance of the decree. Relying on Focin Motorcycle Co. Ltd, the court held the offer of security a mark of good faith and sufficient, and granted the injunction conditional on deposit of security.

p. 2

Legal principles established

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  • Under Order 42 rule 6(6) the High Court in the exercise of its appellate jurisdiction may grant a temporary injunction where the procedure for instituting an appeal from a subordinate court has been complied with

Court orders

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  1. 1.A temporary injunction restraining the 1st and 2nd Respondents, their agents, employees or anybody else acting on their behalf from selling, transferring, auctioning, disposing of or otherwise interfering with Plot No 163/1 Komarock Bridge Jua Kali pending the hearing and determination of the appeal, on condition that the Appellant deposits Kshs.300,000 as security for costs in court within 45 days, failing which the orders of stay shall lapse
  2. 2.The costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure Act, Cap 21Sections 1A, 1B, 3A and 63(c)
  • Civil Procedure RulesOrder 42 rule 6; Order 22 rule 22

Cases cited (1)

  • Focin Motorcycle Co. Ltd vs Ann Wambui Wangui & Another
    [2018] eKLR
On appeal from
Subordinate court (not named)
null
Jurisdiction invoked
Article 159(2)(d) of the Constitution; sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act; Order 42 rule 6 and Order 22 rule 22 of the Civil Procedure Rules

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, "William Kagotho Gachuri v Julius Kanyuku Wanjau & 2 others [2021] KEELC 105 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/105/eng@2021-12-02

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