[2015] KEHC 4705 (KLR)
The court found that the mandatory injunction order issued in 2005 had lapsed by operation of law under Order 40 rule 6 of the Civil Procedure Rules, which provides that interlocutory injunctions expire after twelve months unless extended by the court. There was no evidence that the plaintiff sought an extension of...
Source-derived case information.
- Citation
- [2015] KEHC 4705 (KLR)
- Parties
- Plaintiff: Harun Emmanual Sigwe; Defendant: Standard Chartered Bank (K) Ltd
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 16 of 2005
- Procedural Posture
- Civil Commercial Case / Ruling on Application for Review of Mandatory Injunction Order
- Outcome
- application dismissed
- Legal Topics
- Mandatory Injunctions, Review of Court Orders, Lapse of Injunctions, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harun Emmanual Sigwe
Plaintiff
Standard Chartered Bank (K) Ltd
Defendant
Procedural Posture
Civil Commercial Case / Ruling on Application for Review of Mandatory Injunction Order
Legal Issues
- 1 Whether the court can review or set aside a mandatory injunction order issued in 2005 after more than seven years have elapsed.
- 2 Whether the mandatory injunction order in question was still in force at the time of the application for review.
- 3 Whether the application for review constitutes an abuse of court process.
Ratio Decidendi
The court found that the mandatory injunction order issued in 2005 had lapsed by operation of law under Order 40 rule 6 of the Civil Procedure Rules, which provides that interlocutory injunctions expire after twelve months unless extended by the court. There was no evidence that the plaintiff sought an extension of the order beyond the initial twelve months. Consequently, there was no subsisting order to review or set aside at the time the application was filed in 2012. The application was therefore dismissed as it sought to address a non-existent status. The court further noted that, had the order still been in existence, the legal principles regarding the grant of mandatory injunctions...
Court Disposition
application dismissed
Orders
- The application dated 17/9/2012 is dismissed.
- Costs in the cause.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CIVIL COMMERCIAL CASE NO.16 OF 2005
HARUN EMMANUAL SIGWE..........................PLAINTIFF/RESPONDENT
VS.
STANDARD CHARTERED BANK(K) LTD...........DEFENDANT/APPLICANT
RULING
1. This is a ruling on an application dated 17/9/2012. The application seeks to review court orders made on 26/4/2005. The order is said to be a mandatory injunction and the court is asked to set it aside or review it.
2. The granting of the orders was said to be an error. According to the applicant, a mandatory injunction should not issue in absence of special circumstances and only in clear cases.
3. The plaintiff faults the applicant/defendant for coming to court about 7 years after the orders were issued. “Equity helps the vigilant and not those who are negligent” the plaintiff submitted.
4. The plaintiff further said that the grant of the orders was not a mistake or error and no review therefore should be allowed.
5. According to the plaintiff, the orders earlier granted Exparte were confirmed on 12/5/2005 when the applicants came for hearing interpartes. Counsel is wrong on this. The record of 12/5/2005 shows that the orders were merely extended, not confirmed.
6. I have looked at the application that gave rise to the orders. The application is a Chamber Summons then brought Under order XXXIX rule 1 of Civil Procedure Rules and Sections 3A and 63(c) and (e) of Civil Procedure Act. That was the procedural law applicable to restraining orders at the time. What was granted then was prayer 2, which reads as follows:
Prayer 2:That pending the hearing and determination of the application interparts there issue a mandatory injunction against the defendant by themselves, their servants, agent, employees or otherwise or compelling them to stop and/or desist from interfering or selling and or/alienating the Applicant/plaintiff's parcel of land known as L.R. Bukhayo/Karko/2393 approximate area 0. 197 of acre and/or stop/ restrain the defendant from all forms of advertisement of the said parcel of land together with the development therein.
7. The plaintiff/respondent responded to the application vide grounds of opposition filed on 25/9/2012 and dated the same. The plaintiff said the application is incompetent and abuse of court process, there being no new issue raised.
8. At this point, I wouldn't wish to belabour so much the merits or demerits of the application. I say so because in my view, there are no orders to review or vary.
Order 40 rule 6, which is the current version of Order XXXIX then applicable at the time, states as follows;
Rule 6: 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 grant, the injunction shall lapse unless for any sufficient reason the court orders otherwise.
1. In this matter, the order was issued way back in year 2005. They are sought to be reviewed vide an application filed on 21/9/2012. The lifespan of that order, whether granted exparte or confirmed as alleged by plaintiff, expired long ago. There is no evidence that the plaintiff ever asked for their extension after 12 months. The assumption that the orders are in force is fallacious and has no basis in law. Had the defendant counsel been alive to the provision just cited, she would have known that the order lapsed long ago.
2. This application then must fail because it seeks to address a non – existent status. The application is therefore dismissed. Costs in the cause.
3. But I need to point out that had the order been in existence as a mandatory injunction, the law is as stated by the defendant counsel. But that is not the case and, as I have said, the application is dismissed.
A.K.KANIARU
ENVIRONMENT & LAND – JUDGE
7/5/2015
7/5/2015
A.K. Kianiaru J
John Ogendo court clerk
No party present
Interpretation English/Kiswahili
Ayayo for plaintiff/Respondent
Omondi T. for M/S Stava for defendant/Applicant.
Court: Ruling on application dated 17/9/2012 read and delivered in open court.
Right of appeal 30 days
A.K.KANIARU
ENVIRONMENT & LAND – JUDGE
7/5/2015