[2023] KEHC 2426 (KLR)
The court found that the interlocutory injunction granted to the plaintiff on 22/6/2020 had lapsed both by the express period of 120 days and by operation of Order 40 Rule 6, which limits the life of such orders to 12 months. The plaintiff had taken no steps to prosecute the suit after obtaining the injunction, and...
Source-derived case information.
- Citation
- [2023] KEHC 2426 (KLR)
- Parties
- Plaintiff: Fredrick Kimemia Kimani; Defendant: Piccalily International Limited; Defendant: Gulf African Bank Limited; Defendant: Joseph Gikonyo T/A Garam Investments Auctioneers
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case E176 of 2019
- Procedural Posture
- Civil Case / Ruling on Motion to Set Aside Injunction and Strike Out Suit for Want of Prosecution
- Outcome
- Application allowed in part; interlocutory injunction set aside; notice to show cause to issue for dismissal for want of prosecution; costs to 2nd and 3rd defendants.
- Judges
- A Mabeya
- Legal Topics
- Interlocutory Injunctions, Dismissal for Want of Prosecution, Case Management, Security Realization
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Kimemia Kimani
Plaintiff
Piccalily International Limited
Defendant
Gulf African Bank Limited
Defendant
Joseph Gikonyo T/A Garam Investments Auctioneers
Defendant
Procedural Posture
Civil Case / Ruling on Motion to Set Aside Injunction and Strike Out Suit for Want of Prosecution
Legal Issues
- 1 Whether the interlocutory injunction granted on 22/6/2020 should be set aside due to lapse of time and non-prosecution of the suit.
- 2 Whether the suit should be struck out or dismissed for want of prosecution.
Ratio Decidendi
The court found that the interlocutory injunction granted to the plaintiff on 22/6/2020 had lapsed both by the express period of 120 days and by operation of Order 40 Rule 6, which limits the life of such orders to 12 months. The plaintiff had taken no steps to prosecute the suit after obtaining the injunction, and the supporting affidavit evidence was uncontroverted. The court therefore set aside the injunctive order. As for dismissal for want of prosecution, the court held that a notice to show cause should issue to the plaintiff before such dismissal is considered. Costs of the application were awarded to the 2nd and 3rd defendants.
Court Disposition
Application allowed in part; interlocutory injunction set aside; notice to show cause to issue for dismissal for want of prosecution; costs to 2nd and 3rd defendants.
Orders
- The order of 22/6/2020 granting interlocutory injunction is set aside.
- A notice to show cause shall issue to the plaintiff regarding dismissal for want of prosecution.
Full Case Text
Judgment text and source record
28 paragraphs
Kimani v Piccalily International Limited & 2 others (Civil Case E176 of 2019) [2023] KEHC 2426 (KLR) (Commercial and Tax) (24 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2426 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)
Commercial and Tax
Civil Case E176 of 2019
A Mabeya, J
March 24, 2023
Between
Fredrick Kimemia Kimani
Plaintiff
and
Piccalily International Limited
1st Defendant
Gulf African Bank Limited
2nd Defendant
Joseph Gikonyo T/A Garam Investments Auctioneers
3rd Defendant
Ruling
1. This is a ruling on the motion on notice dated 4/10/2022 by the 2nd and 3rd defendant. It was brought under sections 1A, 1B & 3A of the Civil Procedure Act, order 40, rule 6 and 7 and order 50 rule 1 of the Civil Procedure Rules.
2. The motion sought to set aside the order made on 22/6/2020 that restrained them from dealing with LR No NBI/Block 92/221, Spring Valley, Nairobi. It also sought to strike out and/or dismiss the suit for want of prosecution.
3. The grounds thereof were set out in the body of the motion and in the supporting affidavit of Lawi Sato. These were that, the injunctive order was made on 22/6/2020 for 120 days, the plaintiff was directed to continue servicing the facility by making payments to defray the outstanding amount.
4. Further, that it is now 2 years since then and the suit has not been prosecuted; that the plaintiff was not servicing the facility which as at September, 2022 stood at Kshs 65,073,963/19 and USD 48,131. 43. That the plaintiff failed to take steps to prosecute the suit as directed by the court. That the injunctive order was therefore punitive to the applicants as they could not take any steps to realize their security.
5. Although the application was served, the same was not responded to. The court decided not to determine the same summarily as unopposed but decided to determine the same on merit.
6. I have considered the record. After the orders were granted to the plaintiff on 22/6/2020, no action seems to have been taken. The plaintiff went to slumber. There was only one appearance on 1/10/2020. All subsequent appearances before the Deputy Registrar were given a wide bearth. It is true that the plaintiff may have lost interest in the suit after having obtained the subject order.
7. I have considered the averments in the application as supported by the Affidavit of Lawi Sato. They are uncontroverted. I find that the period of 120 days given in the order have lapsed. Further, the life of an interlocutory order of injunction under order 40 rule 6 is 12 months. The order has outlined its purpose as the plaintiff has decided not to prosecute the suit.
8. In the circumstances, I allow the application and set aside the order of 22/6/2020. As regards the dismissal for want of prosecution a notice to show cause shall issue accordingly. The 2nd and 3rd defendant will have the costs of the application.It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 24TH DAY OF MARCH, 2023. A. MABEYA, FCIArbJUDGE