[2012] KEHC 3559 (KLR)
The court found that the lapse of the interim injunction was due to the plaintiff's counsel being late by only a few minutes and that, given the short history of the matter and ongoing settlement discussions, the defendant would likely not have opposed extension had the plaintiff been present. The court held that...
Source-derived case information.
- Citation
- [2012] KEHC 3559 (KLR)
- Parties
- Plaintiff: Arvin Pahwa; Defendant: Parkroad Investments Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 229 of 2012
- Procedural Posture
- Civil Case / Interlocutory Application for Extension of Interim Injunction
- Outcome
- Interim injunction reinstated and extended to 26th July 2012, subject to conditions.
- Judges
- DW Mbuteti
- Legal Topics
- Interim Injunctions, Tenancy Disputes, Extension of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Arvin Pahwa
Plaintiff
Parkroad Investments Ltd
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Extension of Interim Injunction
Legal Issues
- 1 Whether the court should reinstate and extend the lapsed interim injunction pending hearing of the main application.
- 2 Whether the lapse of the interim order due to non-appearance can be cured in the interests of justice.
- 3 Whether the plaintiff should be subjected to conditions for reinstatement of the interim injunction.
Ratio Decidendi
The court found that the lapse of the interim injunction was due to the plaintiff's counsel being late by only a few minutes and that, given the short history of the matter and ongoing settlement discussions, the defendant would likely not have opposed extension had the plaintiff been present. The court held that denying reinstatement of the interim injunction would unjustly defeat the plaintiff's pending application and potentially the suit itself without a hearing. The technical lapse could be cured in the interests of justice by reinstating and extending the interim injunction, subject to the plaintiff paying the defendant's costs for the application and complying with the tenancy...
Court Disposition
Interim injunction reinstated and extended to 26th July 2012, subject to conditions.
Orders
- The interim injunction granted on 2nd May 2012 and which lapsed on 13th June 2012 is reinstated and extended to 26th July 2012.
- The plaintiff shall pay to the defendant costs of the present application, assessed at KShs 10,000, within fourteen (14) days of delivery of this ruling.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI LAW COURTS)
CIVIL CASE 229 OF 2012
ARVIN PAHWA ………..……………………...............................................……..…PLAINTIFF
VERSUS
PARKROAD INVESTMENTS LTD…....................................................…..…....….DEFENDANT
R U L I N G
1. The Plaintiff brought this suit to protect his tenancy in the residential suit premises. In the alternative he seeks damages on account of the pleaded unsatisfactory condition of the premises. There are other attendant reliefs sought.
2. Together with the plaint the Plaintiff filed notice of motion dated 28th April 2012 for temporary injunctive relief pending disposal of the suit. That application is scheduled for hearing on 26th July 2012.
3. Upon that application interim injunctive relief was granted ex parte on 2nd May 2012. The same was extended inter partes on 15th May 2012 to 13th June 2012 when the matter was to be mentioned with a view to recording a settlement.
4. On 13th June 2012 there was no appearance for the Plaintiff. The Defendant’s learned counsel informed the court that there was no settlement yet, but that discussions were going on. The application was then fixed for hearing on 26th July 2012. As there was no one to apply for extension of the interim orders, the same naturally lapsed.
5. The Plaintiff has now applied by notice of motion dated 22nd June 2012 for an order that the interim orders granted on 2nd May 2012 “be extended until 26th July 2012 when the Plaintiff’s application dated 21st April 2012” shall be heard. The Defendant has opposed the application.
6. I have read the supporting and opposing affidavits. I have also considered the submissions of the learned counsels.
7. The Plaintiff’s leaned counsel was late in coming to court on 13th June 2012 by only a few minutes. Given the short history of this matter, it appears likely that the Defendant would not have opposed extension of the interim orders had there been someone to seek such extension.
8. One thing is certain. Unless the interim injunction is revived and appropriately extended, the Plaintiff’s pending application (and possibly the suit itself) will have been defeated unheard. That will not be just.
9. The technicality that the Plaintiff is seeking to extend an order that has lapsed can be cured, in the interests of justice, by issuing an appropriate order. That order, which I hereby give, is that the interim injunction granted on 2nd May 2012 and which lapsed on 13th June 2012, is hereby reinstated and extended to 26th July 2012 upon the following conditions-
(i)The Plaintiff shall pay to the Defendant costs of the present application, hereby assessed at KShs 10,000/00, within fourteen (14) days of delivery of this ruling.
(ii)The Plaintiff shall pay all due rent as and when if falls due as per the tenancy agreement between the parties.
10. In default of any one of the two conditions above the interim injunction, now reinstated and extended, shall lapse upon an order sought and granted in that behalf.
11. Those will be the orders of the court.
DATED AT NAIROBI THIS 25TH DAY OF JUNE 2012
H.P.G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 26TH DAY OF JUNE 2012