[2011] KEHC 1628 (KLR)
The court found that the Plaintiff, having obtained an ex-parte injunction on 3rd February 2010, failed to comply with the court's direction to fix the application for inter-parte hearing within 14 days and did not take any steps to prosecute the application for over 12 months. The Plaintiff's excuse for not serving...
Source-derived case information.
- Citation
- [2011] KEHC 1628 (KLR)
- Parties
- Plaintiff: Lilian Rwamba; Defendant: Archanged K. Ireri t/a Megabyte Auctioneer; Defendant: Kenya Commercial Bank; Defendant: Onesmus Macharia t/a Watts Auctioneers
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 15 of 2010
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Ex Parte Injunction
- Outcome
- application allowed; ex-parte injunction discharged; costs to 2nd Defendant
- Judges
- AO Muchelule
- Legal Topics
- Ex Parte Injunctions, Inter Parte Hearing, Abuse of Process, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lilian Rwamba
Plaintiff
Archanged K. Ireri t/a Megabyte Auctioneer
Defendant
Kenya Commercial Bank
Defendant
Onesmus Macharia t/a Watts Auctioneers
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Ex Parte Injunction
Legal Issues
- 1 Whether the ex-parte injunction granted to the Plaintiff should be set aside or discharged due to failure to fix the application for inter-parte hearing.
- 2 Whether the Plaintiff abused the court process by not prosecuting the application expeditiously as directed by the court.
Ratio Decidendi
The court found that the Plaintiff, having obtained an ex-parte injunction on 3rd February 2010, failed to comply with the court's direction to fix the application for inter-parte hearing within 14 days and did not take any steps to prosecute the application for over 12 months. The Plaintiff's excuse for not serving the 1st Defendant was found unreasonable, especially as no application for substituted service was made. The court emphasized that ex-parte injunctions are to be heard expeditiously and cannot be extended indefinitely. The Plaintiff's conduct amounted to an abuse of the court process, and the continued operation of the ex-parte order was unjustified. Consequently, the ex-parte...
Court Disposition
application allowed; ex-parte injunction discharged; costs to 2nd Defendant
Orders
- The ex-parte order of injunction issued on 3rd February 2010 is hereby discharged.
- The Plaintiff shall pay the cost of this application.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL CASE NO 15 of 2010
LILIAN RWAMBA ………………............……….……………………………….. PLAINTIFF
VERSUS
ARCHANGED K. IRERI T/A
MEGABYTE AUCTIONEER ……….……..........………………………1ST .DEFENDANT
KENYA COMMERCIAL BANK ………..............………………………. 2ND DEFENDANT
ONESMUS MACHARIA T/A
WATTS AUCTIONEERS ……....……….......……………………..…..3RD DEFENDANT
R U L I N G
On 3rd February 2010 the Plaintiff’s chamber application under Order 39 rules 1, 2, 2A and 3 of the Civil Procedure Rules and sections 3A and 63(e) of the Civil Procedure Act was granted on ex-parte basis in terms of prayer (3). The prayer sought an injunction restraining the 2nd Defendant or his agent the 3rd Defendant from dealing with, interfering with, alienating or disposing land parcel KYENI/KIGUMO/1305 pending the inter-parte hearing and determination of the application. The application was filed under a certificate of urgency. It is common ground that since then the application has not been heard inter-partes.
On 23rd March 2011, the 2nd Defendant filed this motion under Order 40 rule 4 and Order 51 rule 1 of the Civil Procedure Rules and sections 3A and 63(e) of the Civil Procedure Act to have the ex-parte order set aside and/or discharged. The application was based on various grounds, one of which was that the Plaintiff, having obtained an ex-parteorder in an urgent application, has deliberately failed to fix the application for inter-parte hearing and this was meant to frustrate the 2nd Defendant. The other ground was that the ex-parte order was obtained without the court having the benefit of material facts pertaining to the dispute.
There is no dispute on that 25th February 2010 the Plaintiff filed an application to amend the chamber application of 3rd February 2010. The application to amend came for hearing on 26th May 2010 but the file was not placed before the Judge. Since then, the application to amend has not been fixed for hearing.
The Plaintiff swore a replying affidavit to say, among other things, that she has not fixed the injunction application for inter-partehearing because she has not been able to trace and serve the 1st Defendant. It is evident that there has been no application for substituted service. The Plaintiff’s excuse is therefore not reasonable.
Without going into the nature of the dispute between the parties, it is clear from the order of 3rd February 2010 that the Plaintiff was directed to fix a hearing date at the registry for the application within 14 days. It is apparent she did not fix a date within 14 days, or at all. A party who comes to court under a certificate of urgency and obtains an ex-parte order and does not fix the application for inter-parte hearing for a period of 12 months is certainly abusing the process of the court. The order obtained cannot be allowed to continue to be in operation.
I also consider that under Order 40 rule 4 all applications for injunction are to be heard expeditiously and in any event within 60 days from the date of filing. An ex-parte order of injunction may be granted only once for not more than 14 days and shall not be extended thereafter except once by consent of the parties or by the order of court for a period not exceeding 14 days. In short, the ex-parte order of injunction issued on 3rd February 2010 is hereby discharged. The Plaintiff shall pay the cost of this application.
DATED, SIGNED AND DELIVERED AT EMBU THIS 19TH DAY OF SEPTEMBER 2011.
A.O. MUCHELULE
JUDGE