[2011] KEHC 1157 (KLR)
The court held that the Notice of Motion seeking an interim injunction was incurably defective because the supporting affidavit was undated and therefore could not be considered as having been sworn. Without a valid affidavit, there were no facts before the court upon which it could exercise its discretion to grant...
Source-derived case information.
- Citation
- [2011] KEHC 1157 (KLR)
- Parties
- Plaintiff: Movies Four You Limited; Defendant: Industrial & Commercial Development Corporation
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 291 of 2011
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Injunction Application
- Outcome
- Notice of Motion dismissed as incurably defective; costs in the cause.
- Judges
- GMA Dulu
- Legal Topics
- Interlocutory Injunctions, Arbitration Referral, Supporting Affidavit Requirements, Jurisdictional Objections
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Movies Four You Limited
Plaintiff
Industrial & Commercial Development Corporation
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the court should grant an interim injunction restraining the defendant from interfering with the plaintiff's possession of the leased premises.
- 2 Whether the application is fatally defective for lack of a properly sworn supporting affidavit.
- 3 Whether the existence of an arbitration clause and a pending application for stay of proceedings ousts the court's jurisdiction to hear the Notice of Motion.
Ratio Decidendi
The court held that the Notice of Motion seeking an interim injunction was incurably defective because the supporting affidavit was undated and therefore could not be considered as having been sworn. Without a valid affidavit, there were no facts before the court upon which it could exercise its discretion to grant the orders sought. The court further found that the existence of a pending application for stay of proceedings and reference to arbitration did not deprive it of jurisdiction to hear the Notice of Motion, especially since the application for injunction had a prior hearing date. However, the fatal defect in the plaintiff's application was the absence of a valid affidavit,...
Court Disposition
Notice of Motion dismissed as incurably defective; costs in the cause.
Orders
- The Notice of Motion dated 27th July 2011 is dismissed as incurably defective.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
CIVIL SUIT NUMBER 291 OF 2011
MOVIES FOUR YOU LIMITED. ………………….……………PLAINTIFF
VERSUS
INDUSTRIAL & COMMERCIAL
DEVELOPMENT CORPORATION..…………………………DEFENDANT
R U L I N G
The plaintiff filed a plaint on 27th July, 2011, as a fast track case. On the same date, they filed a Notice of Motion under Order 40 rule 1 & 2 of the Civil Procedure Rules. The prayers in the application are as follows: -
1. That this application be certified as urgent and fit to be heard forthwith and exp parte in the first instance.
2. That the defendant, its agents, servant or any other person acting on the defendant’s instructions be restrained by an interim injunction from entering, trespassing, taking possession or in any other way interfering with the plaintiff’s quiet possession of his leased premises on plot No. L.R. 209/7409 situated along Aga Khan Walk Nairobi until the hearing and determination of the suit herein.
3. Costs of this application be borne by the defendant.
On 23rd August 2011, the defendant entered appearance. They did not file a response to this application. However, on 1st September, 2011 they filed a Chamber Summons under section 6 of the Arbitration Act No. 4 of 1995 and Rule 2 of the Arbitration Rules of 1997 seeking for a stay of proceedings to have the matter referred to Arbitration for the resolution of the dispute.
When the Notice of Motion filed on 27th July 2011 came up for hearing as scheduled on 19th September 2011, counsel for the defendant asked the court to hear his client’s Chamber Summons instead of the Notice of Motion. Since the Chamber Summons application did not have a hearing date and the Notice of Motion had a prior specific hearing date, the court ordered that the Notice of Motion be heard. The Notice of Motion was heard and both Mr. Kimani for the plaintiff and Mr. Onguto for the defendants addressed the court.
The Notice of Motion has grounds on the face of the application. It also was filed with a supporting affidavit said to be sworn by Albert Karunguru Muriithi described as Managing Director of the plaintiff. The affidavit was actually not dated. Therefore, in my view, it cannot be said to have been sworn.
The application is opposed on technical grounds, based on the provisions of the Arbitration Act. Counsel for the defendant has submitted that this court does not have jurisdiction to entertain this suit as well as the Notice of Motion application as a request for reference to arbitration has been filed through the Chamber Summons. I do not agree with that preposition. However, as the affidavit in support of the Notice of Motion application was not dated, there are no facts which this court can rely on to consider the Notice of Motion on its merits.
The application, not having any facts or evidence to support it cannot stand. On that basis the application will have to be dismissed, and I will dismiss the same.
Consequently, the Notice of Motion is hereby dismissed, as it is incurably defective. It has no facts on which the court can consider it on merits. I however order that the costs of the application will be in the cause, as the Notice of Motion is an application within the main suit which is still pending.
It is so ordered
Dated and delivered at Nairobi this 21st day of September 2011.
……………………………………
GEORGE DULU
JUDGE
In the Presence of
Mr. Kimani for plaintiff
Mr. Onguto for defendant
C Muendo – court clerk