The Notice of Motion dated May 20, 2022was filed herein on May 23, 2022by the plaintiff. It was filed pursuant to sections 1A, 1B and 3A of the Civil Procedure Act, chapter 21 of the Laws of Kenya, as well as section 3(1) of the Judicature Act, Chapter 8 of the Laws of Kenya, for orders that:(a)Spent(b)Spent(c)Pending the hearing and determination of the appeal, the defendants by themselves and/or through their employees, servants and/or agents including Robert Waweru Maina trading as Antique Auctions Agencies be restrained by way of an injunction from evicting, dealing, charging, wasting, damaging, alienating, disposing, auctioning or, interfering with the plaintiff’s quiet possession, use and enjoyment of the matrimonial property known as Mombasa Title No. Mainland North/I/6985 (C.R. 20841) Bamburi Beach Mombasa.(d)The costs of the application be borne by the defendants.
The application was predicated on the grounds that on May 19, 2022, the 1st defendant sent unknown persons to the plaintiff’s property known as Mombasa Title No. Mainland North/I/6985 (C.R. 20841) with a view to value the property without notice to the plaintiff. The plaintiff further stated that he has preferred an appeal against the ruling delivered on May 26, 2021 and therefore prayed for injunction pending the hearing and determination of the appeal; otherwise, the defendants may proceed to auction the suit property to his detriment.
In support of the application, the appellant relied on his own affidavit, sworn on May 20, 2022to which he annexed a copy of the Notice of Appeal (Annexure AMW-2) in proof of the fact that the 1st and 2nd defendants had taken action towards the filing of an appeal from the ruling dated May 26, 2021, as well as a Draft Notice of Cross-Appeal in Civil Appeal No. E291 of 2021.
In response to the application, the 1st and 2nd respondents filed a notice of preliminary objection dated June 8, 2022, contending that:(a)The application is incompetent and bad in law as there is no Notice of Cross Appeal filed in the suit herein;(b)The appellant is time-barred from filing the Notice of Cross-Appeal and there is no requisite application or leave of the Court for extension of time to file the Notice of Cross-Appeal.
Directions were consequently given onJune 8, 2022that the application be canvassed by way of written submissions; and, whereas counsel for the 1st and 2nd respondents filed her written submissions on July 25, 2022, there appears to be no compliance in that regard on the part of the other parties. I have accordingly perused and considered the written submissions filed by Ms. Kaguri on behalf of the 1st and 2nd respondents. She furnished the background of the application, thereby confirming that the plaintiff is the registered owner of the suit property; and that the 1st defendant accepted it as security for a facility to the plaintiff and the 3rd and 4th defendants. Counsel further confirmed that the plaintiff was granted a conditional temporary injunction but failed to comply with the terms thereof; whereupon the 1st respondent proceeded to serve the plaintiff with fresh statutory notices as directed by the court.
According to Ms. Kaguri, the plaintiff never filed a Notice of Appeal in respect of the ruling dated May 26, 2021, and only attached a draft Notice of Cross Appeal to the instant application. She therefore submitted that the instant application has not only been brought late in the day, but is also an afterthought. In the premises counsel proposed the following two issues for determination:(a)Whether the plaintiff has met the grounds for grant of injunction pending appeal;(b)Who should pay for costs of the application.
I have given careful consideration to the application dated May 20, 2022in the light of the grounds set out on the face thereof, as well as the averments in the pertinent affidavits. I have likewise paid attention to the written submissions filed herein by learned counsel, including the authorities cited therein. The background facts are not in dispute; namely, that the plaintiff filed this suit challenging the intended sale of the suit property by the 1st and 2nd defendants pursuant to the 1st defendant’s statutory power of sale. In the interim, the plaintiff filed an application dated 21st November 2018 for temporary injunction pending the hearing and determination of the suit. In its ruling delivered on May 26, 2021 the Court (Hon. D. Chepkwony, J.) was not convinced that the plaintiff had made a good case for the issuance of temporary injunction. Accordingly, orders were granted as follows:(a)That the 1st respondent bank is directed to specifically serve the guarantor with fresh statutory notices prerequisite to exercise of its statutory power of sale, through the provided address as well as through his advocates on record.(b)That a temporary injunction be and is hereby issued restraining the 1st and 2nd respondents from interfering or otherwise disposing of the subject property pending compliance with Order [a] above.(c)The applicant is at liberty to exercise his right of liberty pending compliance with order [a] above.(d)Costs to abide the outcome of the suit.
It appears the plaintiff did not consider filing the instant application until one year later on May 23, 2022, when he approached thecourt under a Certificate of Urgency. That is the order in respect of which the 1st and 2nd respondents filed the notice of Appeal dated June 10, 2021.
Thus, the Erinford principle was followed by the Court of Appeal in Madhupaper International Ltd v Kerr (supra) wherein it was held that:
In the premises, the question to pose is whether, in the circumstances of this case, the conditions for the grant of an injunction pending appeal have been met. In this respect, the key issue to focus on herein is whether granting the orders sought would inflict more hardship than it would avoid. Indeed, in Patricia Njeri & 3 Others -Vs- National Museum of Kenya (supra) Hon. Visram, J. had occasion to consider a similar matter and set out the following guiding principles:
Accordingly, I have weighed the competing interests of the parties and noted that the instant application was filed after a delay of one year without any demonstration of leave to appeal having been granted to file notice of intention to cross-appeal out of time. It is also evident that the petitioner has opted to rely on a draft Notice of Cross Appeal. It is therefore doubtful that a valid Notice of Cross Appeal was ever filed. In the circumstances, there is no valid appeal to speak of after counsel for the 1st and 2nd respondents indicated that they are no longer interested in pursuing their appeal. It would therefore be superfluous to consider whether the conditions laid down in the case of Giella v Cassman Brown have been met.
In the premises, I am not persuaded that the plaintiff’s application for injunction pending appeal is merited. That being my view, the application dated 20th May 2022 is hereby dismissed with costs.
It is so ordered.