[2013] KEHC 2232 (KLR)
The court found that the interlocutory injunction granted on 22nd February, 2010 had lapsed by operation of law, as more than twelve months had passed without the suit being determined and no sufficient reason was provided by the respondent for the injunction to subsist. The respondent failed to file any response or...
Source-derived case information.
- Citation
- [2013] KEHC 2232 (KLR)
- Parties
- Plaintiff: The Board of Trustees African Inland Church; Defendant: Athanas Kisilu Nganda
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Case 37 of 2010
- Procedural Posture
- Civil Case / Ruling on Application to Discharge Injunction
- Outcome
- application allowed; injunction discharged and set aside
- Judges
- LN Mutende
- Legal Topics
- Interlocutory Injunctions, Lapse of Injunction, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
The Board of Trustees African Inland Church
Plaintiff
Athanas Kisilu Nganda
Defendant
Procedural Posture
Civil Case / Ruling on Application to Discharge Injunction
Legal Issues
- 1 Whether the interlocutory injunction granted on 22nd February, 2010 should be discharged or set aside due to lapse of time.
- 2 Whether the order of injunction has lapsed by operation of law under Order 40 rule 6 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the interlocutory injunction granted on 22nd February, 2010 had lapsed by operation of law, as more than twelve months had passed without the suit being determined and no sufficient reason was provided by the respondent for the injunction to subsist. The respondent failed to file any response or provide justification for the continuation of the injunction. Therefore, the court discharged and set aside the injunctive order in accordance with Order 40 rule 6 of the Civil Procedure Rules.
Court Disposition
application allowed; injunction discharged and set aside
Orders
- The interlocutory injunction order issued on 22nd February, 2010 is discharged and/or set aside.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL CASE NO. 37 OF 2010
THE BOARD OF TRUSTEES AFRICAN INLAND CHURCH ……............................................................PLAINTIFF
VERSUS
ATHANAS KISILU NGANDA ……………….....................................................…………....................DEFENDANT
RULING
The Notice of Motion dated 29th February, 2012 is brought under provisions of Order 40 rule 6 and 7 of the Civil Procedure Rules; Section 1A 1B and 3A of the Civil Procedure Act.
The applicant seeks orders as follows;-
Discharging and or setting aside an injunction order granted on the 22nd February, 2010
A declaration that the order of injunction granted on 22nd February, 2012 has lapsed.
The application is premised on grounds that twelve months have lapsed from the time the injunctive order was granted; and as result of the injunction issued the community is suffering as it cannot access the medical clinic.
The application is supported by an affidavit deponed by Athanas Kisilu Nganda who avers that the injunction order was granted after the plaintiff/respondent purported to be the owners of Land Parcel Number Mbuvo/Kiangini/460 where the dispensary is situated; the title in respect of the parcel of land was recalled by the relevant Ministry and cancelled; the land therefore belongs to the community and he is aggrieved by the injunctive orders in force.
The respondents have failed to file a response to the application.
Order 40 rule 6 of the Civil Procedure Rules states thus;-
“Where a suit in respect of which an interlocutory injunction has been granted is not determined within a period of twelve months from the date of the grant, the injunction shall lapse unless for any sufficient reason the court orders otherwise”.
The suit herein was filed on 22nd February, 2010. Injunctive orders were granted on the same day. 2 ½ years have since lapsed from the date the order was made. The respondent’s counsel having failed to respond to the application, no reason whatsoever has been given by the injunction order should subsist.
In the premises, I find that the injunction order issued herein lapsed. Consequently, I discharge and/or set it aside.
Costs to the applicant.
DATED, SIGNED andDELIVERED at MACHAKOSthis 25thday of SEPTEMBER, 2013.
L.N. MUTENDE
JUDGE