Musa Kipkoriri & 3 others v Kimutai Sitienei & another [2014] KEELC 256 (KLR)
The bottom line
#A Kenyan court confirmed that interim injunctions expire if not extended, and ordered removal of the stale injunction entry from the land title register.
What this practically means
#Executive summary
#Key legal issues
#Whether Order 40 Rule 7 of the Civil Procedure Rules is the correct procedural basis for discharging the lapsed interim injunction orders
The court held Order 40 Rule 7 inapplicable because the interim orders had already lapsed for want of extension; the jurisdiction was properly founded on the inherent power under Section 3A of the Civil Procedure Act.
The court traced the history of the interim orders granted on 8 June 2012 and extended on 20 June 2012, finding they were never extended after 27 June 2012 and that the application for injunction was never heard inter partes. Since lapsed orders no longer exist, there is nothing to discharge or set aside under Order 40 Rule 7. However, the registration of the order as an encumbrance on the title remained, and the inherent jurisdiction under Section 3A empowered the court to make orders in the interests of justice, including declaring the orders lapsed and directing removal of the register entry.
Whether the registered encumbrance on the title should be lifted where the surviving plaintiff has shown no interest in pursuing the injunction
The court ordered the District Land Registrar to remove entry No. 6 registered on 14 June 2012, holding that the registration needed to be lifted and that the 4th plaintiff, having never moved the court to hear the injunction application inter partes, had no interest in it.
Although the interim orders had lapsed, the order of injunction had been registered as an encumbrance in the register of the defendant's title and that registration still stood, clouding the title. The court found it fair to declare the orders lapsed and to order the register discharged. The court noted that the 1st, 2nd and 3rd plaintiffs had withdrawn their suit and that the surviving 4th plaintiff had filed no affidavit in response and had never sought to have the injunction application heard inter partes, giving the court no reason to refuse the application.
Legal principles established
#- Interim orders of injunction that are never extended lapse by operation of law, notwithstanding that they remain registered on the title, and the court may invoke its inherent jurisdiction under Section 3A of the Civil Procedure Act to declare them lapsed and order the register to be discharged.
- Order 40 Rule 7 does not apply where interim orders have already lapsed; the proper basis for intervention is the inherent power under Section 3A of the Civil Procedure Act.
Court orders
#- 1.Declaration that the interim orders of injunction issued on 8 June 2012 have lapsed and are no longer in existence
- 2.Order to the District Land Registrar, Uasin Gishu, to remove the court order entered as entry No. 6 and registered on 14 June 2012 in the register of the title of the land parcel Uasin Gishu/Kipkabus Settlement Scheme/336
- 3.Defendants awarded the costs of the application as against the 4th plaintiff
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act (inherent power) and Order 40 Rule 7 of the Civil Procedure Rules considered; suit commenced under Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Musa Kipkoriri & 3 others v Kimutai Sitienei & another [2014] KEELC 256 (KLR)", Case Analysis (2014). Originating Summons filed 5 June 2012 (Eldoret), application dated 30 April 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/256/eng@2014-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.