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Court of AppealDismissedCivil Appeal No. 23 of 2015· [2015] KECA 205 (KLR)

Erick Kimingichi Wapang’ana & another v Equity Bank Limited & another [2015] KECA 205 (KLR)

Court of Appeal of Kenya
17 November 2015
David Kenani MaragaD.K. MaragaDMD.K. MusingaSKS. Gatembu Kairu
948 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that temporary injunctions automatically expire after twelve months, and appeals against such orders need court leave first.

What this practically means

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Executive summary

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This appeal arose from an overdraft and letter-of-credit facility of Kes.7.8 million extended by Equity Bank Limited to the appellants in December 2009 for the purchase of 100 TVS motor bikes from Car & General, secured by legal charges over three parcels of land and a chattels mortgage. The appellants alleged only 62 units were delivered and that the bank nonetheless disbursed the full sum, after which the second respondent auctioneers seized and sold their vehicles and moved to auction the charged land. The appellants sued in Bungoma HCCC No. 91 of 2011 and obtained an ex-parte temporary injunction from Muchelule, J. on 12th October 2011 restraining the sale of the suit land pending the hearing and determination of the suit. In July 2014 the respondents applied under Order 40 Rules 6 and 7 of the Civil Procedure Rules and sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act for a declaration that the injunction had lapsed, and Mukunya, J. granted that application in a ruling dated 16th December 2014. The appellants appealed, contending that the wording of the injunction made extension unnecessary. The Court of Appeal dismissed the appeal on two independent grounds. First, Order 40 Rules 6 and 7 are not among the provisions listed in Order 43 of the Civil Procedure Rules as attracting appeals without leave, so the appeal, filed without leave, was incompetent. Secondly, on the merits, Order 40 Rule 6 provides that an interlocutory injunction lapses if the suit is not determined within twelve months unless the court orders otherwise for sufficient reason; this applies regardless of the order's wording. No extension was sought or granted, so the injunction lapsed on 12th October 2012 and the High Court's declaration was inevitable. The appeal was dismissed with costs. The decision affirms the High Court ruling and binds lower courts on both the leave requirement and the twelve-month rule.

Key legal issues

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01

Competency of appeal without leave

Holding

The appeal was incompetent because no leave to appeal was obtained and the orders appealed from are not among those listed in Order 43 of the Civil Procedure Rules as appealable without leave.

Reasoning

Order 43 of the Civil Procedure Rules enumerates the provisions of the Rules in respect of which appeals lie from orders made thereunder. Order 40 Rules 6 and 7 are not included. Since the appeal challenged a declaration made under those provisions and leave had neither been sought nor obtained, the appeal was incompetent.

p. 2
02

Lapse of interlocutory injunction under Order 40 Rule 6

Holding

An interlocutory injunction lapses twelve months after grant if the suit is not determined within that period, regardless of the wording of the order, unless the court orders otherwise for sufficient reason.

Reasoning

Rule 6 of Order 40 was made in cognizance of the preceding rules in that Order. Temporary injunctions are issued under Rules 1 to 5, and Rule 6 imposes a statutory life of twelve months on them. Even an order expressed to run 'pending the hearing and determination of the suit' does not escape this limit; extension must be sought and granted. Here the injunction was granted on 12th October 2011 with no extension, so it lapsed on 12th October 2012, and the High Court's declaration to that effect was inevitable.

p. 2

Legal principles established

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  • An appeal lies as of right only from orders listed in Order 43 of the Civil Procedure Rules; appeals from other orders, including orders under Order 40 Rules 6 and 7, require leave, failing which the appeal is incompetent.
  • Notwithstanding the wording of any order of interlocutory injunction, a temporary injunction lapses if the suit is not determined within twelve months of its grant, unless the court orders otherwise for sufficient reason under Order 40 Rule 6.

Court orders

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  1. 1.The appeal is dismissed with costs
On appeal from
High Court of Kenya at Bungoma
H.C.C.C. No. 91 of 2011
Jurisdiction invoked
Appeal from a ruling of the High Court; leave requirement under Order 43 of the Civil Procedure Rules considered

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Erick Kimingichi Wapang’ana & another v Equity Bank Limited & another [2015] KECA 205 (KLR)", Case Analysis (2015). Civil Appeal No. 23 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/205/eng@2015-11-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.