Said Hamisi Kazimzuri v North Coast Development Company Limited [2022] KEELC 483 (KLR)
The bottom line
#A Mombasa court refused to stop a rent distress because the appellant hadn't filed his appeal papers properly, showing Kenyan courts demand full procedure before granting injunctions pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Threshold for injunction pending appeal under Order 42 Rule 6(6)
The application failed because the appellant had not filed a Memorandum of Appeal or Record of Appeal and had not provided a certified typed copy of the ruling, amounting to material non-disclosure
Order 42 Rule 6(6) permits the appellate court to grant a temporary injunction where the procedure for instituting an appeal from a subordinate court has been complied with. This requires a filed appeal (Notice of Appeal, Memorandum of Appeal, and compiled Record of Appeal with proceedings and the ruling appealed from). The appellant annexed only a handwritten ruling and had filed no Memorandum of Appeal; without it there is no appeal. Relying on Juliet Kwamboka Ongwae, the omission of crucial materials meant the application was bound to fail.
Effect of handwritten ruling on evaluation of appeal
The court cannot evaluate the basis of the magistrate's decision on a handwritten ruling; certified typed copies were required
The court held that an appellate court must have the crucial relevant materials needed to evaluate the lower court's decision. A handwritten copy of the ruling is insufficient; the applicant ought to have supplied true and certified copies of the typed ruling. Failure to do so constituted material non-disclosure, following Juliet Kwamboka Ongwae t/a Kahawa Kulture v Mocha Place Limited.
Legal principles established
#- To obtain an injunction pending appeal under Order 42 Rule 6(6), the applicant must have complied with the procedure for instituting an appeal from the subordinate court, including filing a Memorandum of Appeal and compiling the record of appeal
- A court cannot evaluate the basis of a lower court ruling from a handwritten copy; a true certified typed copy is required
Court orders
#- 1.The Notice of Motion application dated 11th June 2021 dismissed with costs to the Respondent for failure to comply with Order 42 Rule 6(6) of the Civil Procedure Rules, 2010
- 2.Appellant granted 14 days leave to file and serve a Memorandum of Appeal against the ruling delivered on 28th May 2021 in Mombasa CMC ELC 1 of 2021
- 3.Appellant directed to liaise with the Chief Court Administrator to obtain true and certified copies of typed proceedings within 45 days
- 4.Upon obtaining proceedings, Appellant to compile, file and serve a Record of Appeal within 14 days
- 5.Mention on 8th June 2022 for directions on the appeal under Section 79B and G and Order 42 Rules 11 and 13
- 6.Costs of the application to be borne by the Respondent
- On appeal from
- Chief Magistrate's Court (Sub-ordinate trial court), Mombasa
- CMC ELC 1 of 2021 (Mombasa)
- Jurisdiction invoked
- Article 159(1) and (2) of the Constitution; Sections 13 and 19 of the Environment and Land Court Act No. 19 of 2011; Section 101 of the Land Registration Act No. 3 of 2012; Section 150 of the Land Act No. 6 of 2012; Order 42 Rule 6(6) Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Said Hamisi Kazimzuri v North Coast Development Company Limited [2022] KEELC 483 (KLR)", Case Analysis (2022). Not stated in the judgment (Mombasa ELC appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/483/eng@2022-04-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.