[2024] KEHC 12679 (KLR)
The court held that seeking substantive injunctive relief through a miscellaneous application is procedurally improper, as it circumvents the normal process and would result in summary disposal without a full hearing. Recognizing the procedural defect, the applicant's counsel sought to withdraw the application. The...
Source-derived case information.
- Citation
- [2024] KEHC 12679 (KLR)
- Parties
- Applicant: Otieno Laurence Ombewa; Respondent: Progressive Credit Limited; Respondent: Valdoms Auctioneers
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Commercial Application E032 of 2024
- Procedural Posture
- Miscellaneous Application / Ruling on Withdrawal of Application
- Outcome
- application withdrawn
- Judges
- RE Aburili
- Legal Topics
- Injunction Procedure, Summary Procedure, Withdrawal of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Otieno Laurence Ombewa
Applicant
Progressive Credit Limited
Respondent
Valdoms Auctioneers
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Withdrawal of Application
Legal Issues
- 1 Whether a substantive order of injunction can be sought by way of a miscellaneous application.
- 2 Whether the application as filed was competent before the court.
Ratio Decidendi
The court held that seeking substantive injunctive relief through a miscellaneous application is procedurally improper, as it circumvents the normal process and would result in summary disposal without a full hearing. Recognizing the procedural defect, the applicant's counsel sought to withdraw the application. The court allowed the withdrawal, noting that had the application not been withdrawn, it would have been struck out for being incompetent. The application was therefore marked as withdrawn, with no orders as to costs, and the file closed.
Court Disposition
application withdrawn
Orders
- The application dated 11th October 2024 is marked as wholly withdrawn.
- No orders as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
Ombewa v Progressive Credit Limited & another (Miscellaneous Commercial Application E032 of 2024) [2024] KEHC 12679 (KLR) (18 October 2024) (Ruling)
Neutral citation: [2024] KEHC 12679 (KLR)
Republic of Kenya
In the High Court at Kisumu
Miscellaneous Commercial Application E032 of 2024
RE Aburili, J
October 18, 2024
Between
Otieno Laurence Ombewa
Applicant
and
Progressive Credit Limited
1st Respondent
Valdoms Auctioneers
2nd Respondent
Ruling
1. A party seeking substantive orders of injunction cannot approach the court by way of Miscellaneous application as that would amount to summary procedure being applied in such a manner that once the interlocutory injunction is determined, there are no other proceedings remaining to be conducted. This is the case herein.
2. The applicant’s counsel rightly seeks to withdraw the application which is incompetently filed and which I would have struck out in limine. However, as she is now well guided that the application is a non-starter, I allow the oral application to withdraw the application.
3. Accordingly, the application dated 11th October 2024 is marked as wholly withdrawn with no orders as to costs and this file is hereby closed.
4. Ruling to be typed and uploaded in the Case Tracking System.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 18THDAY OF OCTOBER, 2024R. E. ABURILIJUDGE