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Court of AppealAllowedCivil Application No. NAI.83 of 2000 (UR. 2000)

MOHAMED OSMAN MAALIM vs EURO BANK LIMITED [2000] KECA 271 (KLR)

Court of Appeal
19 September 2000
164 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal granted Mohamed Osman Maalim an injunction against Euro Bank Limited after the bank's lawyer conceded, with costs deferred to the main appeal.

What this practically means

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Executive summary

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This briefly reasoned ruling of the Court of Appeal at Nairobi, delivered on 19th September 2000 by Omolo, Shah and O'Kubasu, JJ.A, disposed of a civil application (No. NAI.83 of 2000 (UR. 2000)) brought by Mohamed Osman Maalim against Euro Bank Limited in an intended appeal. The intended appeal lay from a ruling of the High Court of Kenya at Nairobi delivered on 2nd March 2000 by Gacheche, Commissioner of Assize, in H.C.C. No. 73 of 2000. The application was by notice of motion dated 21st March 2000, in which the applicant sought, among other things, an injunction in terms as sought in the Court of Appeal. The ruling records no argument, no citation of authority and no statutory provision. Its entire basis is a concession: Mr. Ohaga, appearing for the respondent, conceded that the applicant was entitled to an injunction in the terms sought in the Court. The Court accordingly made an order in terms of prayer 1 of the notice of motion. On costs, the Court did not award costs to either party outright; it directed that the costs of the application be costs in the intended appeal, leaving that question to be resolved with the substantive appeal. Because the disposition rests wholly on the respondent's concession, the ruling lays down no principle of law and cites no authority; its binding effect is confined to its operative orders. The application was therefore allowed in the terms of prayer 1, with costs reserved to the intended appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant was entitled to the injunction sought in prayer 1 of the notice of motion dated 21st March, 2000 in this Court.
  2. 2.What costs order should follow on the application.

Key legal issues

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01

Whether the applicant was entitled to an injunction in the terms sought in the notice of motion dated 21st March, 2000 in the intended appeal.

Holding

Yes. On the respondent's concession, the Court granted an order in terms of prayer 1 of the notice of motion without adjudicating the merits, and directed that the costs of the application be costs in the intended appeal.

Reasoning

The ruling contains no reasoned analysis. Its sole basis is the concession made by Mr. Ohaga, counsel for the respondent, that the applicant was entitled to an injunction in the terms sought in the Court of Appeal. The Court accepted the concession and made the order in terms of prayer 1 of the notice of motion dated 21st March, 2000. Rather than awarding costs outright, the Court directed that the costs of the application be costs in the intended appeal, preserving the costs question for the substantive appeal. No authority or statutory provision was cited.

p. 2

Legal principles established

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  • Where the respondent concedes that an applicant is entitled to the interlocutory relief sought in an intended appeal, the Court of Appeal may grant the order in terms of the notice of motion without adjudicating the merits; no principle of law beyond the operative orders is laid down.

Court orders

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  1. 1.An order in terms of prayer 1 in the notice of motion dated 21st March, 2000 (the injunction as sought in this Court).
  2. 2.Costs of the application to be costs in the intended appeal.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C. No. 73 of 2000
Jurisdiction invoked
Not stated in the judgment. The application was brought in the Court of Appeal at Nairobi in an intended appeal from the High Court (Civil Application No. NAI.83 of 2000 (UR. 2000), by notice of motion dated 21st March, 2000), but the ruling cites no constitutional or statutory provision.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Mr. Ohaga for the respondent concedes that the applicant is entitled to an injunction in terms as sought in this Court.
p. 2Respondent's concession of the interlocutory relief
There will therefore be an order in terms of prayer 1 in the notice of motion dated 21st March, 2000.
p. 2Final orders - injunction granted in terms of prayer 1
Costs of this application will be costs in the intended appeal.
p. 2Final orders - costs reserved to the intended appeal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "MOHAMED OSMAN MAALIM vs EURO BANK LIMITED [2000] KECA 271 (KLR)", Case Analysis (2000). Civil Application No. NAI.83 of 2000 (UR. 2000). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/271/eng@2000-09-19

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