[2001] KEHC 384 (KLR)
The court found that although the application to set aside the ex parte injunction was urgent and certified it as such, the rules of procedure require that the application be served on all affected parties and heard inter partes. The court declined to grant the orders sought ex parte and directed that the...
Source-derived case information.
- Citation
- [2001] KEHC 384 (KLR)
- Parties
- Plaintiff: Prima Bins & Pest Control Limited; Defendant: Municipal Council of Mombasa; Defendant: Keen Cleaners Limited
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 402 of 2001
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Ex Parte Injunction
- Outcome
- Application certified urgent; to be served and heard inter partes.
- Legal Topics
- Ex Parte Injunctions, Setting Aside Orders, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Prima Bins & Pest Control Limited
Plaintiff
Municipal Council of Mombasa
Defendant
Keen Cleaners Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Ex Parte Injunction
Legal Issues
- 1 Whether the ex parte injunction order issued on 7th August 2001 should be set aside.
- 2 Whether the applicant, not named as a party but affected by the order, is entitled to relief.
- 3 Whether the plaintiff failed to comply with pre-conditions or failed to disclose material facts.
Ratio Decidendi
The court found that although the application to set aside the ex parte injunction was urgent and certified it as such, the rules of procedure require that the application be served on all affected parties and heard inter partes. The court declined to grant the orders sought ex parte and directed that the application be served and heard with notice to all parties. The applicant's concerns about being improperly named and affected by the order, as well as allegations of non-compliance and non-disclosure, are to be addressed at the inter partes hearing.
Court Disposition
Application certified urgent; to be served and heard inter partes.
Orders
- The application is certified as urgent.
- The application to set aside the injunction is to be served and heard inter partes on 30/8/01.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 402 OF 2001
PRIMA BINS & PEST CONTROL LIMITED ………. PLAINTIFF
V E R S U S
1. MUNICIPAL COUNCIL OF MOMBASA
2. KEEN CLEANERS LIMITED ……………………… DEFENDANT
R U L I N G
The application by Notice of Motion seeks to set aside ex parte orders of injunction issued by this court on 7th August, 2001. It is brought under Order 39 rule 4, Order 50 rules 1 and 2 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The applicant herein maintains it is not a party to the suit but is affected by the orders issued as against the 2nd defendant in that it was served with the court order and the plaintiff maintains the orders are as against the applicant. However the applicant who entered appearance under protest and by an affidavit in support therein sworn by one David Langat the Managing Director says the company is known as Keen Kleeners Ltd. as opposed to Keen Cleaners as described in the pleadings.
Counsel for the applicant came to court by way of a certificate of urgency seeking the same to be certified urgent. He however went further to state that the court can grant the orders sought on ex parte basis without giving the other side a hearing. Order 39 rule 4 does give the court the discretion to discharge or vary or set aside an order for an injunction. Order 50 rule 2 makes it mandatory for the issuance of a notice to any affected parties of any motion filed
. The applicants application seeks to set aside the order of injunction on grounds that the plaintiff has failed to comply with a pre-condition set by the court and further on grounds of failure to disclose material facts when the order was sought. I have considered the issues raised in lime with the provisions of order 50 rule 2 certify the application as urgent but orders that the same be served and heard inter partes on the 30/8/01.
Dated and Delivered this 28th August, 2001.
P.M. TUITUI
COMMISSIONER OF ASSIZE