[2013] KEHC 2878 (KLR)
The court held that the Civil Procedure Rules, 2010, specifically Order 40 Rule 6, applied to all pending proceedings, including those where injunctions had been granted under the previous rules. The injunction in question, granted in 1997, lapsed by operation of law one year after the new rules came into force in...
Source-derived case information.
- Citation
- [2013] KEHC 2878 (KLR)
- Parties
- Plaintiff: Saifudeen Abdallah Bhai; Defendant: Zainab Mwinyi
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 424 of 1996
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection to Contempt Application
- Outcome
- preliminary objection sustained; application dismissed with costs
- Judges
- SN Mukunya
- Legal Topics
- Injunction Lapse, Retrospective Application of Rules, Contempt of Court, Revocation of Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Saifudeen Abdallah Bhai
Plaintiff
Zainab Mwinyi
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection to Contempt Application
Legal Issues
- 1 Whether the interlocutory injunction granted in 1997 was still in force at the time of the contempt application in 2013.
- 2 Whether Order 40 Rule 6 of the Civil Procedure Rules applies retrospectively to injunctions granted before its enactment.
- 3 Whether the application to commit the defendant for contempt was competent in the absence of a subsisting injunction.
Ratio Decidendi
The court held that the Civil Procedure Rules, 2010, specifically Order 40 Rule 6, applied to all pending proceedings, including those where injunctions had been granted under the previous rules. The injunction in question, granted in 1997, lapsed by operation of law one year after the new rules came into force in 2010, as the applicant did not seek an extension within the prescribed period. The validity of the original injunction was not in question, but its continued effect was extinguished by effluxion of time under the new rules. Consequently, there was no subsisting injunction to be enforced, rendering the contempt application incompetent.
Court Disposition
preliminary objection sustained; application dismissed with costs
Orders
- The preliminary objection is sustained and allowed.
- The notice of motion dated 20th June, 2013 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 424 OF 1996
SAIFUDEEN ABDALLAH BHAI............................................... PLAINTIFFS
VERSUS
M/S ZAINAB MWINYI ......................................................... DEFENDANT
RULING
{1] On 24th June 2013 the applicant herein filed a notice of motion praying that the defendant Zainab Mwinyi be arrested and committed to prison for a term not exceeding six months. The applicant averred that the reasons for such committal was that the respondent had disobeyed the court orders of injunction granted by the Court on 13. 3.1997.
[2] During the hearing of the said motion Mr. Mr. Khatib learned counsel for the respondent raised a preliminary objection. The injunction under reference was issued on 13th March, 1997. This was some 16 years ago. He relied on Order 40 rule 6 which provides that an injunction must lapse after the expiration of 12 months. He argued that even if it was to be assumed that the current Civil Procedure Rules came into operation in 2010 the order herein lapsed in 2011 by virtue of Order 4 Rule 6 aforesaid. He maintained that there was no injunction inforce and that the application dated 20th June 2013 was incompetent and prayed that it should be dismissed with costs to the respondent.
[3] Mr. Anyanzwa Learned Counsel for the applicant argued that the injunction was given until the determination of the suit. That there was no change of the order. That Order 40 Rule 6 was not law when the order of injunction was made in 1997. He argued that if it was the intention of Parliament for the current Civil Procedure rule also apply retrospectively, parliament should have said so. He argued that Order 40 rule 6 does not therefore apply to this injunction.
[4] Mr. Khatib Learned Counsel for the respondent on reply stated that Order 54 Rules 1 and 2 revoke the previous rules. He argued that, that was his basis for maintaining that the injunction had lapsed on 2011.
[5] Order 40 Rule 6 states as follows;
"Where a suit in respect of which an interlocutory injunction has been granted is not determined within a period of twelve months from the date of the grant, the injunction shall lapse unless for any sufficient reason the court orders otherwise."
Order 54 rule 1 states
"The Civil Procedure Rules are revoked"
Rule 2 of the same Order states;
"In all proceedings pending whether preparatory or incidental to, or consequential upon any proceedings in court at the time of the coming into force of these rules, the provisions of these rules shall thereafter apply, but without prejudice to the validity of anything previously done"
It is quite clear from the foregoing Civil Procedure Rules therebefore were revoked. Subsection retained the validity of actions done under the old rules. Validity of granting the injunction orders is not an issue here. The applicant should have moved the court on coming of the new rules to have the injunction orders subsisting extended as the new law required. There was one year to do so. This was not done. The injunction orders therefore were vacated by effluxion of time. Time being one year after the new procedure rules came into force.
I agree with Mr.Khatib that there is no injunction inforce. His preliminary objection is sustained and allowed. The notice of motion of 20th June, 2013 is dismissed with costs to the respondents.
DATED and delivered in open Court at Mombasa this 26th day of July, 2013.
S.N. MUKUNYA
JUDGE
26. 7.2013
In the presence of:
Mr. Khatib Advocate for the defendant
Mr. Anyanzwa for plaintiff - absent