Kimani v Kungu (Civil Application E128 of 2022) [2023] KECA 150 (KLR) (17 February 2023) (Ruling)
- Court
- Court of Appeal
- Case number
- 150
- Citation
- [2023] KECA 150 (KLR)
- Decided
- 17 February 2023
The applicant's notice of motion dated March 24, 2022 fails and is hereby dismissed with costs to the respondent.
Facts
The respondent, Serah Wanjiru Kungu, filed a suit against the applicant, Peter Munyua Kimani, in the Senior Principal Magistrates' Court at Kikuyu SPMCC No 230 of 2010 seeking an order of permanent injunction to restrain the applicant from trespassing on the suit property and eviction of the applicant from the suit property. The trial court struck out the respondent's case with no orders as to costs due to a dispute over how the respondent acquired the property.
Issues
- Whether the appeal is arguable and would be rendered nugatory if stay is not granted.
- Whether the impugned judgment has been executed and the applicant's rights have been violated.
Reasoning
The court held that the impugned judgment has been executed, and the applicant's rights have been violated. The appeal is not frivolous, but the court does not determine the success of the appeal.
Outcome
The applicant's motion is dismissed with costs.
Orders
- The applicant's notice of motion dated March 24, 2022 is dismissed with costs to the respondent.
Authorities cited
Cases cited (3)
- Anne Wanjiku Kibeh vs Clement Kungu Waibara and IEBC [2020] eKLR
- Yellow Horse Inns Limited vs A A Kawir Transporters & 4 Others [2014] eKLR
- Reliance Bank Ltd Vs Norlake Investments Ltd (2002) 1 EA p.227 at p 232
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