[2001] KEHC 427 (KLR)
The court found that the application was procedurally defective because it was brought by Chamber Summons rather than by Notice of Motion, as required under Order XXXIX rule 3(2) and Section 3A of the Civil Procedure Act. Furthermore, the court held that the application was not for an injunction but for setting...
Source-derived case information.
- Citation
- [2001] KEHC 427 (KLR)
- Parties
- Plaintiff: Morris Guchura Njage; Defendant: National Bank of Kenya Ltd & Kenya National Corporation Ltd; Defendant: Damaris Wanyaga Kiragu; Defendant: James F.K. Nganga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1694 of 1999
- Procedural Posture
- Civil Suit / Ruling on Application to Lift Prohibitory Orders
- Outcome
- application dismissed with costs
- Legal Topics
- Prohibitory Orders, Injunctions, Procedure for Applications, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Morris Guchura Njage
Plaintiff
National Bank of Kenya Ltd & Kenya National Corporation Ltd
Defendant
Damaris Wanyaga Kiragu
Defendant
James F.K. Nganga
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Lift Prohibitory Orders
Legal Issues
- 1 Whether the application to lift prohibitory orders was properly before the court.
- 2 Whether the application was procedurally correct under Order XXXIX rule 3(2) and Section 3A of the Civil Procedure Act.
Ratio Decidendi
The court found that the application was procedurally defective because it was brought by Chamber Summons rather than by Notice of Motion, as required under Order XXXIX rule 3(2) and Section 3A of the Civil Procedure Act. Furthermore, the court held that the application was not for an injunction but for setting aside prohibitory orders, making the cited provisions inapplicable. As a result, the application was dismissed for being improperly filed.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
CIVIL SUIT NO. 1694 OF 1999
MORRIS GUCHURA NJAGE…………………………………………PLAINTIFF
versus
NATIONAL BANK OF KENYA LTD &
KENYA NATIONAL CORPORATION LTD……………………..1ST DEFENDANT
DAMARIS WANYAGA KIRAGU…………………………………2ND DEFENDANT
JAMES F.K. NGANGA……………………………………………3RD DEFENDANT
R U L I N G
This is an application made under order XXXIX rule 3(2) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act.
The applicants pray for an order that prohibitory orders filed and registered against L.R. No. Ngandorui/Kirigi/856 and Ngandori/Ngorio/165 by the respondents be lifted and discharged. They also pray for costs.
The respondent in the application is also the registered proprietor and the chargor of the suit premises while one of the applicants is the chargee.
It is not in dispute that there are no restraining orders all those injunctions that were issued by the court prior hereto in other suits having been discharged.
The application is opposed one of the issue that arises then is whether the application is properly before this court.
Order XXXIX rule 3(2) under which the application is made stipulates: 3(2) an exparte injunction may be granted only once for not more than 14 days and shall not be renewable”
This is not an application for an injunction as it seeks to have set aside prohibitory orders and on that ground above the application is bound to fail.
Counsel for the respondent also took issues with the fact having come under order XXXIX rule 3(2), the applicant could only move the court by way of a notice of motion and not by way of a Chamber Summons as happened in the case. I am bound to agree with him on that line of submission specially in view of the fact that Chamber Application can only be made in cases where the court is moved under rules 1 & 2 of Order XXXIX otherwise in all other instances under the said order, it shall be by way of Notice of Motion. The same requirement would apply to applications brought that are under section 3A of the Civil procedure Act.
In view of the above, the application which is improperly filed in this court is hereby dismissed with costs.
Dated and delivered this 30th day of January, 2001.
JEANNE W. GACHECHE
COMMISSIONER OF ASSIZE
Delivered in the presence of Mr. Mariaria for the applicant. No appearance for the
respondents