HUSSEIN HAJI ISSA vs ANWARALI K. ISMAIL [2004] KEHC 2220 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO 953 OF 2003

HUSSEIN HAJI ISSA …………………...………………… APPELLANT

VERSUS

ANWARALI K. ISMAIL ……………..…………….. 1ST RESPONDENT

ABDUL AZIM ANWAR …………………………… 2ND RESPONDENT

RULING

This is an application under Order XXXIX Rules 1, 2 and 3 (1) and Order

XLI Rule 4 (1) of the Civil Procedure Rules (hereinafter referred to as “the

Rules”) and Section 3 A of the Civil Procedure Act (Cap 21). In it the

Appellant seeks the following orders:

“2.          That a stay of execution do issue against the orders given on

3rd December, 2003 in Narok SRMCC No 70 of 2003

(hereinafter referred to as “the original suit”), until the

hearing and determination of the appeal.

3.         That an order of injunction do issue restraining the

defendants by themselves, their agents and servants from

collecting rent in plot number 11 Narok Township

(hereinafter referred to as “the suit land”) or in any other way

interfere with the tenant in the sa id plot, until determination

of this appeal.”

The matters leading to the application are not in dispute. The appellant is

the proprietor of the suit land. He was involved in a dispute over the same

with the Respondents who were collecting rent in respect of stalls erected

thereon. However, before his case could be tried, it was struck out on the

grounds that the lower court in which it was filed had no pecuniary

jurisdiction to hear it and that the verifying affidavit accompanying it was

defective. The Appellant was aggrieved by the decision of the lower court

and has appealed to this court seeking to have the decision of the lower court

reversed. In the interim, he seeks the orders alluded to earlier.

It is obvious that the rights of the parties have not finally been determined.

Although at this stage I am not entitled to decide the appeal on its merits, I

think that the Appellant who is the registered proprietor of the suit land is

entitled to the protection of this court to secure his property until the rights

of the parties have been finally determined. The fact that the Respondents

are in occupation does not diminish the Appellant’s right to seek remedy

from this court. I am more concerned by the fact that the dispute in the case

involves members of the same family. Having considered these factors and

the general case I am of the view that this is a special case which requires

careful balance. In the circumstances, I direct that all income from the suit

property shall be deposited in an interest earning account in the joint names

of the Advocates on record for the parties in a reputable bank, pending the

hearing and final determination of this Appeal. Those shall be the orders of

this court. The costs of the application will abide the outcome of the appeal.

Dated and delivered at Nairobi this 26th day of April, 2004.

ALNASHIR VISRAM

JUDGE