Omega Enterprises (Kenya) Ltd v Kenya Tourist Development Corporation & 2 others (Civil Appeal 59 of 1993) [1998] KECA 2 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that ex parte injunctions granted without recorded reasons or beyond 14 days are void, and a court cannot cancel a third party's auction purchase without hearing them.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the ex parte injunction order of 18 December 1992 was invalid for non-compliance with the mandatory requirements of Order XXXIX rule 3(1) of the Civil Procedure Rules (failure to record reasons for hearing the application ex parte)
- 2.Whether the ex parte injunction was additionally void for exceeding the 14-day maximum period prescribed by Order 39 rule 3(2)
- 3.Whether an order that is null and void could bind the appellant, who was not a party to the proceedings in which it was made
- 4.Whether the ruling of 15 January 1993, which declared the public auction illegal and confirmed the injunction, was a nullity as founded on a void order and as made against the appellant without a hearing
Key legal issues
#Mandatory nature of Order XXXIX rule 3(1) - recorded reasons for ex parte hearing
The ex parte order of 18 December 1992 was invalid because the court did not record reasons for being satisfied that the object of the injunction would be defeated by delay; the rule is mandatory, not directory.
The court construed Order XXXIX rule 3(1), which permits ex parte hearing only where the court is satisfied for reasons to be recorded that delay would defeat the injunction. The record showed the judge granted the order without counsel addressing him and without recording any reasons. Following the court's own earlier decision in Uhuru Highway Development Ltd v Central Bank of Kenya, the recording of reasons is mandatory; non-compliance left the order without legal basis and null and void. Reliance on Boyles v Gathure (directory provisions) was distinguished as concerning a mere wrong form of application, not a fundamental breach of a mandatory rule.
Exceeding the 14-day statutory maximum for ex parte injunctions
The ex parte injunction granted until 4 January 1993 (16-17 days) exceeded the 14-day maximum in Order 39 rule 3(2) and was therefore made without jurisdiction and null and void.
Order 39 rule 3(2) provides that no injunction may be granted ex parte for longer than shown to be necessary and in no case for more than 14 days. The judge granted the injunction until 4 January 1993, beyond the 14-day limit. The court held this was a defiance of mandatory provisions rendering the order without legal basis and void, compounding the defect of the missing recorded reasons.
Effect of a void order on third parties and on subsequent proceedings
A void order is a nullity that binds no one, including third parties; all proceedings founded on it, including the ruling of 15 January 1993, are themselves nullities.
Applying Macfoy v United Africa Co Ltd, the court held that a void act is incurably bad and needs no formal setting aside, and every proceeding founded on it collapses. The ex parte order was not addressed to Omega, so Omega was not obliged to obey it or to apply to set it aside. The ruling of 15 January 1993, being in pursuance of the void order, was of no legal effect. The obligation in Hadkinson v Hadkinson to obey court orders until discharged applies to persons against whom orders are made, not to third parties affected by them.
Breach of natural justice against the appellant purchaser
The superior court could not declare the appellant's auction purchase illegal, invalid and of no effect without joining or hearing the appellant; doing so breached natural justice and entitled the appellant to have the order set aside ex debito justitiae.
The appellant was never a party to KTDC's suit against the chargee and receiver, yet the ruling of 15 January 1993 declared its auction purchase illegal and confirmed an injunction continuing to the determination of the suit, directly affecting its interests. The inter partes hearing on 11 January 1993 proceeded without any reference to the appellant. Applying Lord Diplock in Isaacs v Robertson, orders obtained in breach of natural justice attract the inherent right to be set aside ex debito justitiae.
Legal principles established
#- An ex parte injunction may be heard and granted only where the court is satisfied, for reasons recorded on the record, that the object of granting the injunction would be defeated by delay; failure to record such reasons renders the order invalid, null and void.
- No ex parte injunction may be granted for more than 14 days; an ex parte injunction exceeding that period is made without jurisdiction and is null and void.
- A void order is a nullity requiring no formal setting aside, and every proceeding founded on it is equally bad and incurably bad.
- A court cannot declare a sale to a third party illegal or void without first giving that third party, whose interests are affected, an opportunity to be heard; such an order breaches the rules of natural justice and attracts the right to be set aside ex debito justitiae.
Court orders
#- 1.Appeal allowed
- 2.Order of the superior court dated 15th January 1993 set aside
- 3.Costs of the appeal awarded to the appellant against the first, second and third respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Gicheru JA wrote the lead judgment. He held that the ex parte injunction of 18 December 1992 was granted in defiance of Order XXXIX rule 3(1) of the Civil Procedure Rules, which requires recorded reasons for hearing an application ex parte, and that the subsequent ruling of 15 January 1993, which declared the auction illegal and confirmed the injunction, affected the appellant purchaser without giving it a hearing, breaching the rules of natural justice and attracting the right to have it set aside ex debito justitiae. He would allow the appeal, set aside the order of 15 January 1993 and award costs to the appellant against all three respondents.
clearly in breach of the rules of natural justice and attracts ex debito justitiae the right to have it set aside. In the result, I would allow the appellant's appeal, set aside the order of the superior court dated 15th January, 1993p. 4
Wrote the judgment
Tunoi JA agreed entirely with the judgments of Gicheru and Pall. He held that the ex parte order was made without recorded reasons as mandated by Order 39 rule 3(1) and exceeded the 14-day maximum under rule 3(2), making it null and void; that third parties cannot be guilty of disobeying a void order; and that all proceedings founded on the void order were a complete nullity. He also rejected the respondents' notice of grounds for affirming the decision, which was not addressed at the hearing. He would allow the appeal with costs.
all the proceedings before the learned Judge which were based upon the null and void order having been allegedly disobeyed are a complete nullity since with such a faulty foundation the entire house of cards must collapse without much adop. 6
Wrote the judgment
Pall JA, in the fullest account of the facts, held that the ex parte order of 18 December 1992 was invalid because the judge recorded no reasons for hearing the application ex parte and granted the injunction for 16 days in defiance of the 14-day cap in Order 39 rule 3(2). He held the order was not addressed to Omega, and that the judge could not declare the auction illegal without giving Omega an opportunity to be heard, breaching natural justice. The proceedings of 15 January 1993 founded on the void order were themselves a nullity. He would allow the appeal with costs and set aside the order of 15 January 1993.
there is no doubt that the learned Judge could not have declared the sale of the suit property illegal or void without first giving Omega an opportunity of being heard which is a breach of one of the fundamental rules of natural justicep. 10
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C No. 6776 of 1992
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court (an appeal from the ruling of the High Court of Kenya at Nairobi dated 15th January, 1993)
Relief refused
#Counsel for the first respondent's request not to participate in the appeal
Granted, not refused - Mr Oyatsi was excused from participating on behalf of KTDC
Costs
Costs of the appeal awarded to the appellant against the first, second and third respondents (all three judgments allow the appeal with costs).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the result, I would allow the appellant's appeal, set aside the order of the superior court dated 15th January, 1993 and order that the costs of this appeal be awarded to the appellant again the first, second and third respondents. As Tunoi and Pall, JJ.A. agree it is so ordered.
For these reasons I would allow the appeal with costs and set aside the said order of 15th January, 1993.
For the above reasons I would allow the appeal with costs.
the hearing of an application for injunction ex parte can only be legitimate where the court is satisfied that the object of granting the injunction would be defeated by delay and that satisfaction must be manifested by the recorded reasons of the court
If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado
It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged.
there is no doubt that the learned Judge could not have declared the sale of the suit property illegal or void without first giving Omega an opportunity of being heard which is a breach of one of the fundamental rules of natural justice
Issues in the judgment
#The judgment contains internal inconsistencies in dates and quotations: Pall JA's judgment opens by describing the appeal as from a ruling 'delivered on 15th January, 1992' while the coram and the other judgments state 15th January, 1993; the length of the ex parte injunction is variously described as 16 days and 17 days; and the quotations from Macfoy and from Order 39 rule 3(2) contain transcription errors ('No injuries may be granted ex-parte', 'You cannot put something on nothing and expert it to stay there').
Tunoi JA's judgment is signed 'P.K. TUNOI JUDGE KOF APPEAL', an evident typographical error in the copy.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Diamond Trust Bank Kenya Ltd v Mutubia & another (Civil Appeal E161 of 2023) [2026] KECA 1001 (KLR)[2026] KECA 1001 (KLR)29 May 2026
Cite this brief
#Cite this brief
Caselaw, "Omega Enterprises (Kenya) Ltd v Kenya Tourist Development Corporation & 2 others (Civil Appeal 59 of 1993) [1998] KECA 2 (KLR)", Case Analysis (1998). Civil Appeal No 59 of 1993. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/2/eng@1998-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.