[2000] KEHC 329 (KLR)
The court found that the Chamber Summons application was not maintainable because the subdivision sought to be restrained had already taken place, rendering the application moot. The proper procedure for addressing noncompliance with court orders would have been to seek committal for contempt, not an injunction....
Source-derived case information.
- Citation
- [2000] KEHC 329 (KLR)
- Parties
- Plaintiff: Njuno Ltd. & 4 Others; Defendant: Michael Njenga Kamau & Another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2230 of 1991
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection to Chamber Summons Application
- Outcome
- application dismissed with costs
- Legal Topics
- Injunctions, Preliminary Objection, Subdivision of Land, Noncompliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njuno Ltd. & 4 Others
Plaintiff
Michael Njenga Kamau & Another
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection to Chamber Summons Application
Legal Issues
- 1 Whether the Chamber Summons application seeking to restrain submission of a subdivision plan is maintainable after the subdivision has already occurred.
- 2 Whether the application is an abuse of court process due to lack of consent, substitution, and overtaking by events.
- 3 Whether the proper procedure for noncompliance with court orders is an application for committal rather than an injunction.
Ratio Decidendi
The court found that the Chamber Summons application was not maintainable because the subdivision sought to be restrained had already taken place, rendering the application moot. The proper procedure for addressing noncompliance with court orders would have been to seek committal for contempt, not an injunction. Additionally, the preliminary objection was upheld on the basis that the application was procedurally defective, lacked necessary party consent, failed to substitute a deceased applicant, and was an abuse of the court process. The court dismissed the application with costs, emphasizing that it could not grant relief under Order XXXIX rr. 1 and 2 in these circumstances.
Court Disposition
application dismissed with costs
Orders
- The preliminary objection is upheld.
- The Chamber Summons application dated 11th August, 2000 is dismissed with costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 2230 OF 1991
NJUNO LTD. & 4 OTHERS.........................................PLAINTIFFS
VERSUS
MICHAEL NJENGA KAMAU & ANOTHER...............DEFENDANTS
R U L I N G
The 2nd and 8th plaintiffs herein filed a Chamber Summons application under Order XXXIX rr. 1 and 2 of the Civil Procedure Rules seeking the following orders:-
"1. THAT S. N. Mwaura his Co-directors, their servants and or agents be restrained from submitting the sub-division plan for parcel of land L.R 2930 situate in Nyandarua pending hearing and determination of this application to the Commissioner of Lands.
2. THAT the proposed sub-division plan submitted be nullified.
3. THAT the costs of this application be provided for".
This application is brought on the ground that the intended submission of the sub-division plan is in complete disobedience and defiance of court orders made by this Honourable Court and that failure to comply with the court orders will occasion injustice and deprieve the shareholders their rightful shareholding.
This application was filed on 11th August, 2000 and on 24th August, 2000, Mr. Muira for 1st plaintiff filed grounds of opposition and notice of preliminary objection. The preliminary objection was argued on 22nd September, 2000. Mr. Muira sought the dismissal of the Chamber Summons application on the following grounds:-
"1. The consent of all the parties named has not been sought or obtained.
2. One of the parties named as an Applicant died long time ago and there has not been any substitution.
3. There is no substantive suit between 1st Plaintiff and Co-plaintiffs.
4. The application has been overtaken by events in that the subdivision plan has been submitted, approved by the Commissioner of Lands and by the Company's shareholders during a Special General Meeting.
5. The Court is being asked to play the role of the majority shareholders who have no problem with the way the present Board is running the Company.
6. The application is an abuse of the Court process and is an outright effort to frustrate the present Board, elected by the majority shareholders.
M r. Muira's main argument was that this matter had been overtaken by events since the plans have been approved and subdivision completed.
In answer to the above Mr. Gatimu for 2nd to 8th Plaintiffs stated that what has been done (subdivision) was in complete contravention of this court's order.
The way I understand this matter is that this court made certain orders on 29th July, 1999 which orders were not complied with. If that is the case then the question of an application for injunction does not arise. In the first place the subdivision which was intended to be stopped had already taken place. The proper procedure would have been an application to commit the party in contravention.
Looking at the main prayer in Chamber Summons application of 11th August, 2000, it is clear that this court would not entertain such an application. I am satisfied that the preliminary objection has merit. There is no way this court can entertain that application under Order XXXIX rr. 1 and 2 of the Civil Procedure Rules. The advocate for 2nd to 8th plaintiffs should reconsider the position of his clients very carefully.
In view of the foregoing, preliminary objection is upheld and the application is dismissed with costs.
Delivered and dated at Nairobi this 29th day of September, 2000.
E. O. O'KUBASU ..........................
JUDGE OF APPEAL