Elizabeth Wamuranga Icika v Jamii Bora Bank Limited [2014] KEELC 669 (KLR)
The bottom line
#Kenya's High Court set aside an ex parte injunction against Jamii Bora Bank because the served application lacked a hearing date, denying the Bank a chance to be heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the ex parte injunction orders of 3rd July 2014 should be set aside
The orders were set aside because the copy of the Notice of Motion served on the Defendant bore no hearing date, misleading the court and the Defendant.
The court found as an undisputed fact that while the Defendant was served with the application and order, the served copy of the Notice of Motion had no hearing date, whereas the return of service suggested a hearing date of 3rd July 2014. The motion was allowed only because it was unopposed. The court held the Defendant was entitled to notice of the hearing date and deserved an opportunity to be heard.
Jurisdiction to interfere with an interlocutory injunction under Order 40 Rule 7
The court has discretionary jurisdiction under Order 40 Rule 7 to set aside or discharge an injunction order, to be exercised judiciously.
The court relied on Section 3A of the Civil Procedure Act (inherent power) and Order 40 Rule 7, which grants the court discretion to set aside an injunction order as and when applied for by a dissatisfied party, provided the party convinces the court why the orders should be set aside. The authorities relied upon by the Defendant supported exercise of that discretion where retention of the injunction would defeat the ends of justice.
Legal principles established
#- The discretion to set aside ex parte orders is unfettered but must be exercised judiciously on well-settled principles and on terms that are just
- An order of injunction may be discharged, varied or set aside if it is shown to be contrary to the ends of justice to retain it in force
- A party served with a Notice of Motion lacking a hearing date is entitled to a notice of the hearing date before the motion can be proceeded with ex parte
Court orders
#- 1.The Defendant's Notice of Motion dated 15th July 2014 allowed in terms of prayers No. 2 and 3 with costs to the applicant
- 2.The ex parte proceedings of 3rd July 2014 and consequential orders set aside and the Plaintiff's application dated 23rd June 2014 to be heard afresh inter partes on the merits
- 3.The order of injunction granted on 3rd July 2014 in the Plaintiff's favour discharged/set aside (alternative prayer)
- 4.Defendant granted leave of 14 days to file and serve a Replying Affidavit to the Notice of Motion dated 23rd June 2014
- 5.Plaintiff granted corresponding leave of 7 days after service to file a Supplementary Affidavit if need be
- 6.Matter to be mentioned on 17th December 2014 for further orders
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act and Order 51 Rules 3 and 15, Order 40 Rule 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Cheseret Arap Korir v Equatorial Land Holdings Ltd [2020] KEELC 2831 (KLR)[2020] KEELC 2831 (KLR)7 May 2020
- ABDUL ROTICH v SIRGOI HOLDINGS LIMITED & 2 others[2018] KEHC 908 (KLR)21 Nov 2018applied
Cite this brief
#Cite this brief
Caselaw, "Elizabeth Wamuranga Icika v Jamii Bora Bank Limited [2014] KEELC 669 (KLR)", Case Analysis (2014). ELC Suit No. 823 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/669/eng@2014-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.