[2011] KEHC 825 (KLR)
The court found that both parties contributed to the delay in prosecuting the suit, with neither taking steps to advance the matter. The defendants, despite being aggrieved by the injunction, did not file a defence or seek dismissal for want of prosecution. The court held that the equities were equal and that...
Source-derived case information.
- Citation
- [2011] KEHC 825 (KLR)
- Parties
- Plaintiff: Iyale Academy; Defendant: Jim Mugambi; Defendant: James N. Mbugua; Defendant: John Karumba Ndege
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 250 of 2008
- Procedural Posture
- Civil Suit / Ruling on Application to Discharge Injunction
- Outcome
- Application to discharge injunction declined; directions issued for expeditious trial.
- Judges
- EM Muriithi
- Legal Topics
- Interlocutory Injunctions, Distress for Rent, Delay in Prosecution, Equitable Remedies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Iyale Academy
Plaintiff
Jim Mugambi
Defendant
James N. Mbugua
Defendant
John Karumba Ndege
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Discharge Injunction
Legal Issues
- 1 Whether the interim injunction restraining distress for rent should be discharged due to delay in prosecution of the suit.
- 2 Whether continued existence of the injunction prejudices the defendants contrary to Article 159 of the Constitution.
- 3 Whether the equities between the parties are balanced regarding the delay.
Ratio Decidendi
The court found that both parties contributed to the delay in prosecuting the suit, with neither taking steps to advance the matter. The defendants, despite being aggrieved by the injunction, did not file a defence or seek dismissal for want of prosecution. The court held that the equities were equal and that discharging the injunction would expose the plaintiff to immediate attachment for disputed rent arrears, potentially prejudicing the plaintiff and disrupting school operations. Therefore, the court declined to discharge the interim injunction but directed the defendants to file their defence within seven days and ordered both parties to prepare the case for trial expeditiously.
Court Disposition
Application to discharge injunction declined; directions issued for expeditious trial.
Orders
- The interim order of 20/11/2008 is not discharged.
- The defendant shall file its defence within seven (7) days.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO 250 OF 2008
IYALE ACADEMY..............................................................................................PLAINTIFF
VERSUS
1. JIM MUGAMBI
2. JAMES N. MBUGUA
3. JOHN KARUMBA NDEGE...................................................................DEFENDANTS
R U L I N G
1. By an application dated 8/2/2011 the defendant seeks the discharge of an order of injunction granted in the suit in 19/9/08 and subsequently extended by consent of the parties “until the hearing date.” The injunction restrained the defendants from removing the plaintiff’s goods and equipment from the suit premises in recovery of arrears of rental to the date of the suit. The defendant/applicant contended that the existence of the injunction order over 34 months since it was issued and the failure by the plaintiff to prosecute the case since the 20th November 2008 are prejudicial to the defendants and contrary to the constitutional obligation of the court under Article 159 to determine disputes between parties expeditiously.
2. The plaintiff opposes the application arguing that the defendants have not been prejudiced because they have continued to receive rent due and that all the order restrained was the distress over a sum of Ksh.1. 47 million paid into the society at a time when it was experiencing leadership wrangles. The plaintiff further states that it did not prosecute the suit as there were ongoing engagements towards amicable solution of the dispute between the parties. The plaintiff pleads that the discharge order of 20/11/2008 will prejudice it because of attachment of school equipment and disruption of studies for the school students.
3. I have considered the application and I find that in addition to the principle that justice shall not be delayed there is the equally important constitutional principle under Art 159 that justice shall be done to all. I find that the discharge of the consent order will open the plaintiff to immediate attachment pursuant to the distress of rent proclamation of 6/9/2008 for arrears of rent which are disputed and which have been the subject of ongoing restrictions between the parties.
4. I also observe that the defendant could have fixed the suit for hearing or applied for its dismissal when the plaintiff delayed its prosecution. Significantly, the defendant has never filed a defence to the suit despite its advocate filing a notice of appointment on the 20/11/08 on the same date of the consent order.
5. Accordingly, I find that the equities are equal as both parties have taken no steps towards the early determination of the suit and therefore decline to discharge the interim order of 20/11/2008 as requested by the defendants. I, however, direct the defendant to file its defence within the next seven (7) days and the parties to process the case for trial in accordance with Order 11 of the Civil Procedure Rules 2010 and that the matter be mentioned for pre-trial case conference within 30 days from today. Costs in the cause.
Dated and delivered this 28th day of October 2011
EDWARD M. MURIITHI
JUDGE
In the presence of
....................................for the Applicant
..................................for the Respondent
..................................court clerk
EDWARD M. MURIITHI
JUDGE