[2006] KEHC 887 (KLR)
The court held that the plaintiff's application for interlocutory injunction was properly grounded under Order XXXIX Rule 1(a) of the Civil Procedure Rules, as the plaintiff alleged that he did not sign the charge and thus disputed the existence of the contract. The absence of a prayer for permanent injunction in...
Source-derived case information.
- Citation
- [2006] KEHC 887 (KLR)
- Parties
- Plaintiff: Peter Mwendia Muinami; Defendant: Barclays Bank of Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 602 of 2006
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs to the plaintiff
- Judges
- MM Kasango
- Legal Topics
- Interlocutory Injunctions, Preliminary Objection, Statutory Power of Sale, Pleadings Amendment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mwendia Muinami
Plaintiff
Barclays Bank of Kenya Limited
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether a plaint must contain a prayer for permanent injunction to enable the plaintiff seek an interlocutory injunction.
- 2 Whether the absence of a permanent injunction prayer in the plaint is fatal to the plaintiff's application for interlocutory relief.
- 3 Whether the plaintiff's claim falls under Order XXXIX Rule 1(a) or Rule 2 of the Civil Procedure Rules.
Ratio Decidendi
The court held that the plaintiff's application for interlocutory injunction was properly grounded under Order XXXIX Rule 1(a) of the Civil Procedure Rules, as the plaintiff alleged that he did not sign the charge and thus disputed the existence of the contract. The absence of a prayer for permanent injunction in the plaint was not fatal to the application, since the relief sought was to prevent the property from being wasted, damaged, or alienated pending determination of the dispute. The court further noted that the plaintiff had already indicated an intention to amend the plaint, and therefore the defendant's preliminary objection, which was based on a technicality, could not be...
Court Disposition
preliminary objection dismissed with costs to the plaintiff
Orders
- The defendant's preliminary objection is dismissed with costs to the plaintiff.
- Further orders regarding the scheduled sale of the property to be made at the reading of this ruling.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 602 of 2006
PETER MWENDIA MUINAMI ……………..……….......………..PLAINTIFF
VERSUS
BARCLAYS BANK OF KENYA LIMITED………….………DEFENDANT
RULING
The Plaintiff moved by certificate of urgency in the Chamber Summons dated 3rd November, 2006. Before that Chamber Summons could be heard the Defendant raised a preliminary objection. Although in the Notice of preliminary objection filed in court on 6th November, 2006 the defendant had more than one objections when he appeared before court the Defendant raised the objection to this present suit on the basis that the Plaint does not pray for a permanent injunction to enable the Plaintiff seek an interlocutory injunction in the Chamber Summons. This, the Defendant argued was in contravention to Order XXXIX Rule 2 of the Civil Procedure Rules. It is important to note that before the Defendant’s counsel raised that objection Plaintiff’s counsel began to address the court on the need to amend the Plaint to include a prayer for permanent injunction. The court was of the view that leave to so amend was not required. Having that in mind that the Plaintiff had intimated his intention to amend the Plaint, the court would not be in a position to entertain the very objection which goes to root of that amendment. That as it may be the Plaint filed herein has indicated that the Plaintiff alleges that he did not sign the charge upon which the Defendant wishes to exercise its statutory power of sale. In other words the Plaintiff is not saying that there has been a breach of contract but is saying that there is no existence of such a contract and accordingly seeks to injunct the Defendant from selling the suit poetry. When one has that in mind it does seem that the Plaintiff’s Chamber Summons is on Order XXXIX Rule 1(a) of the Civil Procedure Rules. In other words what the Plaintiff says is that there is a dispute over the suit property which is in danger of being wasted, damaged or alienated. That being the case there is no need for the Plaintiff to have a prayer for permanent injunction in the Plaint. For that reason the Defendant’s objection is rejected and is dismissed with costs to the Plaintiff. Having reached that conclusion it is clear that the Plaintiff will be prejudiced that the delay in hearing of its application dated 3rd November, 2006. This is because the sale of the charged property is scheduled to be on 7th November, 2006 when this court will read this ruling. For that reason in the interest of justice the court will make further orders in that regard at the reading of this ruling.
MARY KASANGO
JUDGE
Dated and delivered this 7th day of November, 2006
MARY KASANGO
JUDGE