[2009] KEHC 1569 (KLR)
The court found that the omission of the words 'until further orders of the court' from the extracted order was an error, as the original intention was for the interlocutory injunction to remain in force until further orders or the determination of the suit. The court exercised its power of review to correct the...
Source-derived case information.
- Citation
- [2009] KEHC 1569 (KLR)
- Parties
- Plaintiff: James Gichaiya Mwangi; Defendant: Kenya Commercial Bank
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 153 of 2008
- Procedural Posture
- Civil Application / Ruling on Application for Review of Interlocutory Injunction Order
- Outcome
- application allowed in part
- Legal Topics
- Interlocutory Injunctions, Review of Orders, Extraction of Orders, Land Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Gichaiya Mwangi
Plaintiff
Kenya Commercial Bank
Defendant
Procedural Posture
Civil Application / Ruling on Application for Review of Interlocutory Injunction Order
Legal Issues
- 1 Whether the omission of the words 'until further orders of the court' in the extracted order was an error requiring review.
- 2 Whether the interlocutory injunction should remain in force until further orders of the court.
Ratio Decidendi
The court found that the omission of the words 'until further orders of the court' from the extracted order was an error, as the original intention was for the interlocutory injunction to remain in force until further orders or the determination of the suit. The court exercised its power of review to correct the order, ensuring that the injunction would subsist as intended. The application for review was allowed to the extent of varying the order to include the omitted words, thereby clarifying the duration and effect of the injunction.
Court Disposition
application allowed in part
Orders
- The order made on 22/7/08 is varied by adding the words 'until further order of the court' under Order 1 thereof.
- Costs of this application shall be in the cause.
Full Case Text
Judgment text and source record
13 paragraphs
JAMES GICHAIYA MWANGI ……………………………. PLAINTIFF
VERSUS
KENYA COMMERCIAL BANK …………….………... DEFENDANT
R U L I N G
Application by Notice of Motion dated 7/5/2009 brought under Section 3A, 80, 75 and 79G, Civil Procedure Act, Cap.21 and Order XLIV Rule 1 (1), Rule 6, Order L Rule 1, Civil Procedure Rules. This motion is seeking orders for review of this court’s order made on 22/7/2008. The order made arose after application dated 26/3/08 in presence of all parties.
The court granted prayer 3 of that application which prays for:-
“Court be pleased to grant the plaintiff, an order for injunction against the defendant, its agents, employees or through whomsoever from alienating, advertising for sale, selling or by whatever other means interfering with the plaintiff’s suit premises known as Title No. Kutus Township/92 until hearing and determination of this application or further orders of the court.”
The hearing and determination of this application came to an end on 22/7/08 when the ruling was delivered. Therefore, the injunction was “until further orders of the court.” It is not therefore correct to state that the orders granted were not prayed for. However in extracting the order, the words “until further orders of the court” were omitted. This would make the injunction valid until court order discharging the same or the determination of the suit which is the purpose of interlocutory injunction.
I therefore vary the order made on 22/7/08 by adding the said words under Order 1 thereof by adding “until further order of the court.” The application is allowed to that extent. Costs of this application shall be in the cause.
Orders accordingly.
DATED, SIGNED and DELIVERED at Nairobi this 26th day of October 2009.
JOYCE N. KHAMINWA
JUDGE