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Court of AppealPartially AllowedCivil Application (interlocutory injunction application, Nairobi)· [1987] KECA 79 (KLR)

Otieno v Ougo & another (No 2) [1987] KECA 79 (KLR)

Court of Appeal
18 February 1987
281 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal stopped an exhumation, confirming courts preserve the disputed subject-matter until an appeal is decided.

What this practically means

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Executive summary

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This was an interlocutory application under Rule 5(2)(b) of the Court of Appeal Rules seeking an injunction pending an intended appeal, apparently concerning exhumation of a body held at the City Mortuary. The Court of Appeal, comprising Nyarangi, Platt and Gachuhi JJA, disposed of the application on the basis of the court's established practice as evidenced in Gheewala and Butt. The court restated the usual rule: an injunction is granted to preserve the subject-matter pending the hearing and determination of the action, so that the appellant's rights are safeguarded and a successful appeal is not rendered nugatory. Finding no special circumstances warranting a different course - the body could be preserved for another two months, so there was no necessity to risk exhumation - the court allowed the application and granted orders in terms of paragraphs 1 and 2 of the notice of motion, directing that the body remain at the City Mortuary until further order. The court agreed with the respondents' counsel that the applicant should proceed expeditiously to prepare and file the record of appeal, and accepted the applicant's counsel's offer to lodge the record within 28 days. The court made no order as to costs. The judgment is delivered as a single decision of the whole bench without separate opinions or dissents.

Key legal issues

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01

Whether an injunction should issue to preserve the subject-matter pending appeal

Holding

Yes. The established practice of the court is to grant an injunction preserving the subject-matter so the appeal is not rendered nugatory; the fact that the body could be preserved for two more months did not justify exhumation in the interim.

Reasoning

The court disposed of the application on the basis of its established practice, following Gheewala and Butt. Injunctive relief preserves the subject-matter of a dispute pending determination so that a successful appeal is not nugatory. As the body would remain preserved for another two months, no necessity to risk exhumation arose, and no special circumstances justified departing from the usual rule.

p. 1
02

Duty of the applicant to expedite the appeal

Holding

The applicant, having obtained preservation orders, must move expeditiously to prepare and lodge the record of appeal; counsel undertook to do so within 28 days.

Reasoning

The respondents' counsel submitted that the applicant should proceed expeditiously to prepare and file the record of the intended appeal. The court agreed with this submission and accepted the applicant's counsel's offer to lodge the record within 28 days, coupling the preservation orders with an obligation to pursue the appeal without delay.

p. 1

Legal principles established

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  • The usual rule is that an interlocutory injunction is granted to preserve the subject-matter pending the hearing and determination of the action, so that the rights of an appellant are safeguarded and a successful appeal is not rendered nugatory.

Court orders

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  1. 1.Application allowed in terms of paragraphs 1 and 2 of the notice of motion
  2. 2.The body shall remain in the City Mortuary until further order of the court
  3. 3.No order as to costs
  4. 4.Applicant to lodge the record of appeal within 28 days
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Otieno v Ougo & another (No 2) [1987] KECA 79 (KLR)", Case Analysis (1987). Civil Application (interlocutory injunction application, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/79/eng@1987-02-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.