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ELCDismissed· [2022] KEELC 1505 (KLR)

William Olotch Owako v Christopher Osiro Ogutu & another [2022] KEELC 1505 (KLR)

Environment and Land Court
10 February 2022
1,183 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cannot grant an injunction to pause its own judgment pending appeal; the losing party must apply to the Court of Appeal instead.

What this practically means

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Executive summary

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The plaintiff filed a notice of motion dated 30/06/2021 under Section 3A of the Civil Procedure Act and Orders 40, 42 and 51 of the Civil Procedure Rules, seeking a temporary injunction restraining the 2nd defendant from developing, disposing of or dealing with land parcel L.R. Number Uholo/Ugunja/1993 pending an intended appeal. The suit had been dismissed by this court on 10/05/2019 and the plaintiff filed a notice of appeal on 13/08/2019. The plaintiff argued the appeal would be rendered nugatory without the order, relied on Consolidated Marine vs Nampijja and Butt vs Rent Restriction Tribunal, and attributed the delay in filing to the late availing of typed proceedings. The 2nd defendant opposed, citing an ongoing construction on the suit property, the appeal's lack of merit and the plaintiff's inordinate delay; both sides filed submissions, the defendants relying on Giella vs Cassman Brown. The court framed a single issue: whether the motion was merited. It held its power to grant injunctions pending appeal lies under Order 42 Rule 6 (6), not Order 40, and that a court which has rendered judgment becomes functus officio and cannot grant an injunction pending an appeal against its own decision, following Bartholomew Mwanyungu, Tahir Sheikh Said Investments and Chembe Katana Changi. It further held that even if jurisdiction existed, the two-year unexplained delay was inordinate and unreasonable. The court dismissed the motion with costs to the defendants and directed the plaintiff to the Court of Appeal under Rule 5(2)(b).

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction to grant an injunction pending an appeal against its own decision

Holding

No. Once the court renders judgment it becomes functus officio; a party who has filed a notice of appeal must move the Court of Appeal under Rule 5(2)(b).

Reasoning

The court construed Order 42 Rule 6(6), which empowers the court sitting in appellate jurisdiction over subordinate courts to grant temporary injunctions, but only over the decisions of lower courts. It adopted a line of decisions (Bartholomew Mwanyungu, Tahir Sheikh Said Investments, Chembe Katana Changi) holding that a court becomes functus officio upon delivering judgment. Since the court itself dismissed the suit on 10/05/2019, it could not grant an injunction pending the appeal against its own decision, and the plaintiff's remedy lay in the Court of Appeal.

p. 2
02

Whether the delay of two years in filing the motion was excusable

Holding

No. A two-year delay without plausible explanation is inordinate and unreasonable; the explanation of delayed typed proceedings was rejected as implausible.

Reasoning

Even assuming jurisdiction existed, the motion was filed roughly two years after the judgment of 10/05/2019. The plaintiff attributed the delay to the court's failure to avail typed proceedings, but the court found no plausible explanation offered. The court held such unexplained delay inordinate and unreasonable, an independent ground for refusing the discretionary relief sought.

p. 2
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The principles governing stay of execution or injunction pending appeal

Holding

The principles are similar: the applicant must show an arguable appeal and that the appeal would be rendered nugatory absent the order.

Reasoning

Noting that the plaintiff had argued as if applying for stay rather than injunction pending appeal, the court held the settled principles for both are more or less similar, citing Jennifer Akinyi Osodo: the applicant must establish an arguable appeal and demonstrate that without the stay order the intended appeal would be rendered nugatory. This framed the discretionary framework within which the application was assessed.

p. 2

Legal principles established

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  • A court that has rendered judgment becomes functus officio and cannot grant an injunction pending an appeal against its own decision; jurisdiction lies only in the appellate court.
  • The High Court's power to grant a temporary injunction pending an appeal from a subordinate court derives from Order 42 Rule 6 (6) of the Civil Procedure Rules.
  • An inordinate and unexplained delay in filing an application for injunction pending appeal disentitles the applicant.

Court orders

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  1. 1.The Plaintiff's motion dated 30/06/2021 is dismissed with costs to the defendants

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 40
  • Civil Procedure RulesOrder 42 Rule 6 (1)
  • Civil Procedure RulesOrder 42 Rule 6 (6)
  • Civil Procedure RulesOrder 51
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (7)

  • Consolidated Marine vs Nampijja & Another
    Civil Appeal No. 93 of 1989 (Nairobi)
  • Butt vs Rent Restriction Tribunal
    [1982] KLR
  • Giella vs Cassman Brown
    [1973] EA 358
  • Jennifer Akinyi Osodo v Boniface Okumu Osodo & 3 others
    [2021] eKLR
  • Bartholomew Mwanyungu & 3 others v Florence Dean Karimi
    [2019] eKLR
  • Tahir Sheikh Said Investments Ltd v Administrator, TSS Grain Millers Ltd & 2 others
    [2019] eKLR
  • Chembe Katana Changi v Ministry For Lands & Settlment & 4 others
    [2014] eKLR
On appeal from
Subordinate court (suit dismissed by this court on 10/05/2019)
Jurisdiction invoked
Sections 3A of the Civil Procedure Act and Orders 40, 42 and 51 of the Civil Procedure Rules, as invoked by the applicant; the court found its actual jurisdiction governed by Order 42 Rule 6 (6)

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 Olotch Owako v Christopher Osiro Ogutu & another [2022] KEELC 1505 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1505/eng@2022-02-10

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