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ELCAllowedOriginating Summons filed 5 June 2012 (application dated 30 April 2014)· [2014] KEELC 336 (KLR)

Musa Kipkoriri & 3 others v Kimutai Sitienei & another [2014] KEELC 336 (KLR)

Environment and Land Court
3 July 2014
916 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that interim injunctions lapse automatically if never extended—even when still registered on a land title, which must then be cleared.

What this practically means

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Executive summary

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The suit was an Originating Summons filed on 5 June 2012 under Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act, in which the plaintiffs claimed land parcel Uasin Gishu/Kipkabus Settlement Scheme/336 by adverse possession, asserting settlement on the land in 1990. Together with the summons they sought an injunction, and on 8 June 2012 interim orders issued barring the defendant from selling, transferring or interfering with their possession; the order was registered against the title on 14 June 2012 and extended once on 20 June 2012. The matter was never heard inter partes: successive adjournments followed, and on 6 November 2012 the 1st, 2nd and 3rd plaintiffs withdrew, leaving only the 4th plaintiff. The defendant's application dated 30 April 2014 sought discharge of the interim orders and lifting of the registered inhibition. The court held that the interim orders had lapsed by 27 June 2012 because they were never extended, that Order 40 Rule 7 was inapplicable to orders no longer in existence, and that the proper basis for removing the surviving register entry was the court's inherent jurisdiction under Section 3A of the Civil Procedure Act. It declared the orders lapsed, ordered the District Land Registrar, Uasin Gishu, to remove entry No. 6, and awarded the defendants costs against the 4th plaintiff.

Key legal issues

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01

Lapse of interim injunction orders

Holding

The interim injunction orders lapsed when they were never extended after 27 June 2012, and no declaration under Order 40 Rule 7 was strictly necessary to discharge them.

Reasoning

The court traced the record: the interim orders were granted on 8 June 2012 and extended on 20 June 2012 for hearing on 27 June 2012. On that date the applicants' counsel was not ready and the matter was adjourned; the interim orders were not extended. Later hearings also failed to proceed and the application for injunction was never heard inter partes. The court therefore found the orders had lapsed by operation of law at the latest on 27 June 2012.

p. 2
02

Proper procedural basis for lifting a registered but lapsed injunction entry

Holding

Order 40 Rule 7 does not apply to lapsed orders; the court's inherent power under Section 3A of the Civil Procedure Act permits an order that the registration be discharged.

Reasoning

The court held that since the interim orders were no longer in existence, there was nothing to 'discharge, vary or set aside' under Order 40 Rule 7. The practical problem was that the order had been registered as an encumbrance (entry No. 6) on the defendants' title and the registration still stood. The court invoked Section 3A to declare the orders lapsed and to order removal of the register entry, finding the surviving 4th plaintiff had shown no interest in pursuing the injunction.

p. 2

Legal principles established

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  • Interim orders of injunction that are never extended lapse by operation of law and cease to exist, notwithstanding that they remain on record and registered against a title.
  • Where a registered injunction entry remains on a title after the underlying order has lapsed, the court may invoke its inherent jurisdiction under Section 3A of the Civil Procedure Act, rather than Order 40 Rule 7, to order removal of the entry.

Court orders

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  1. 1.Declared that the interim orders of injunction issued on 8 June 2012 have lapsed and are no longer in existence
  2. 2.Ordered the District Land Registrar, Uasin Gishu, to remove the court order entered as entry No. 6 registered on 14 June 2012 in the register of the title of land parcel Uasin Gishu/Kipkabus Settlement Scheme/336
  3. 3.Awarded the defendants the costs of the application as against the 4th plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 37 Rule 7
  • Limitation of Actions ActSection 38
  • Civil Procedure RulesOrder 40 Rule 7
  • Civil Procedure ActSection 3A
Jurisdiction invoked
Section 3A of the Civil Procedure Act (inherent power), Order 37 Rule 7 of the Civil Procedure Rules and Section 38 of the Limitation of Actions Act underlying the suit

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Musa Kipkoriri & 3 others v Kimutai Sitienei & another [2014] KEELC 336 (KLR)", Case Analysis (2014). Originating Summons filed 5 June 2012 (application dated 30 April 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/336/eng@2014-07-03

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