REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU CIVIL APPEAL 67 OF 2008 MBURUGA MUCIRI NGURE………………….………..APPELLANT VERSUS RUTH WANGARI MBURUGA……………………….RESPONDENT RULING I have heard the application before me. I have considered the grounds on its face and the rival affidavits for and against the same. I have also considered the oral submissions by both counsel in court and the law applicable in this matter. First and foremost, I agree with counsel for the Respondent that the said application is fatally defective. The same seeks for a temporary injunction under Order XXXIX Rule 1 and 2 of the Civil Procedure Rules. Although prayer 2 is one for stay of execution, it is noted that the application is not premised on Order XLI Rule 4 of the Civil Procedure Rules at all which is the only order dealing with stay of execution pending an appeal. Order XXXIX on the other hand applies where there is a suit pending before the court. In this case the suit has already been dismissed and an appeal cannot be said to be a suit for purposes of order XXXIX rule 1 –because an appeal does not commence any civil proceedings. In any event, there is actually no decree here which is at a risk of being executed. My finding therefore is that this application lacks merit and the same is hereby dismissed. W. KARANJA JUDGE 13/10/2008 Delivered and signed in open court today in presence of Mr. Munene for Mr. Mwai and Respondent in person. W. KARANJA JUDGE 13/10/2008
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