GEORGE GIKUBU MBUTHIA vs KENYA COMMERCIAL BANK LIMITED [2004] KEHC 2255 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO 44 OF 2004

GEORGE GIKUBU MBUTHIA ……………...……… 1ST APPELLANT

PALACE DRYCLEANERS LIMITED ……...……… 2ND APPELLANT

VERSUS

KENYA COMMERCIAL BANK LIMITED …..……… RESPONDENT

RULING

This is an application stated to be brought under Order 41 Rule 4 (a), (b) (6) of the Civil Procedure Rules, Section 3 A of the Civil Procedure Act (Cap 21) and the Registered Land Act (Cap 300). The Rule referred to must be an error. However, no issue turns on this and I need to say no more than that on it. In the application the Appellants seek the following orders:

“1. THAT this Honourable Court do grant an (sic) temporary injunction against the Respondent restraining (it) from advertising for sale by public auction or otherwise or in any other way alienating the 1 st Appellant’s parcel of land known as L R KIINE/KIBINGOTI – NGUGUINI/1785 hereinafter referred to as “the suit land” which is subject to this appeal pending the hearing of the Appeal herein.

2. THAT an order for stay (of) execution be granted staying the orders granted by Hon. Mrs Wamae delivered on the 20 th January, 2004 and/or any other consequential orders emanating from CMCC No 7908 of 1995 pending the hearing and disposal of the Appeal filed herein.

3. (Costs).”

The matters leading to the application are not in dispute. The Appellants filed the suit in the lower court against the Respondent in 1995. From the Affidavit of the 1st Appellant sworn on 23rd January, 2004 in support of the application, the lower court granted him an injunction on 25th August, 1995 preventing the Respondent from selling or in any way alienating the suit land. On 23rd September, 2003 the Respondent applied to the lower court to have the suit dismissed for want of prosecution. That application was heard by the Honourable Mrs Wamae (Senior Resident Magistrate). The Learned Magistrate refused to dismiss the Appellants’ suit, but directed that the same be fixed for hearing within 30 days failing which it would stand dismissed.

That order was made on 28th October, 2003. The suit was not fixed for hearing within that period. Instead of the Appellants fixing the suit for hearing, they filed an application to further amend their Plaint. That application was fixed for hearing on 19th December, 2003 and was adjourned to 16th January, 2004. On that day, the Respondent raised a Preliminary Objection to the effect that the Appellants had not complied with the order of Honourable Mrs Wamae of 28th October, 2003. The same Magistrate agreed with the objection and on 20th January, 2004 dismissed the Appellants’ suit. The Appellants were aggrieved by that decision and have appealed to this court.

I do not have the record of the lower court and I am unable to establish the nature of the dispute between the parties in the lower court. The Respondent did not file a Replying Affidavit to show under what authority it sought to sell the suit land. It is unclear whether it sought to do so as chargee or otherwise. I cannot speculate. Its Advocate who appeared before me did not explain these matters either. All I know is that the 1st Appellant is the owner of the suit land and that the Appellants' suit in the lower court was dismissed. The lower court had before dismissing that suit granted the 1st Appellant injunction as has already been seen. That court must have been satisfied that this was a proper case for doing so. It does not appear that the Respondent challenged that decision. As matters stand, the Appellants’ suit was rejected summarily and until the rectitude or otherwise of that dismissal is resolved in this appeal, I am of the considered view that the status quo ante prevailing before that decision was made be maintained until the appeal is determined.

I, therefore, allow the Appellants’ application dated 23rd June, 2004 with costs.

Dated and delivered at Nairobi this 22nd day of April, 2004.

ALNASHIR VISRAM

JUDGE