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|Case Number:||Civil Appeal 67 of 2008|
|Parties:||MBURUGA MUCIRI NGURE v RUTH WANGARI MBURUGA|
|Date Delivered:||13 Oct 2008|
|Court:||High Court at Embu|
|Citation:||MBURUGA MUCIRI NGURE v RUTH WANGARI MBURUGA  eKLR|
|Case Outcome:||Application Dismissed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL APPEAL 67 OF 2008
MBURUGA MUCIRI NGURE………………….………..APPELLANT
RUTH WANGARI MBURUGA……………………….RESPONDENT
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.
Delivered and signed in open court today in presence of Mr. Munene for Mr. Mwai and Respondent in person.