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