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ELCDismissedNotice of motion dated 13th February 2015 (suit land case, Malindi)· [2015] KEELC 185 (KLR)

Kazungu Moli Chogo & others v Perihan Torun & others [2015] KEELC 185 (KLR)

High Court of Kenya
18 September 2015
AOA. Omollo
1,191 words in judgment
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The bottom line

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The High Court dismissed a contempt application because the interim injunction protecting the applicants had expired, so there was no order left to disobey.

What this practically means

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Executive summary

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The plaintiffs/applicants brought contempt proceedings by notice of motion dated 13th February 2015 seeking the detention of the 1st to 5th defendants/respondents and their officers for six months, compensation, and costs for disobeying a temporary injunction issued on 28th June 2013 in a dispute over suit land. The respondents opposed through a replying affidavit, grounds of opposition, and a preliminary objection, arguing the orders had lapsed by operation of law for late service and non-extension, and that no disobedience was proved. The court framed two issues: whether the 28.6.2013 order had lapsed, and if not, whether disobedience was proved. On the first issue, the court found service on 8th July 2013 - the same day the order was extracted - complied with Order 40 rule 4(3)'s three-day service requirement. However, on perusing the proceedings, the court found the interim orders had been extended only until delivery of the ruling on the respondents' preliminary objection, delivered on 14th March 2014. Thereafter the applicants failed to fix their application for hearing, and the court held the order lapsed on 14.3.2014, with the only injunction in force being one favouring the respondents. Having found no subsisting order in the applicants' favour, the court declined to determine whether contempt was proved, terming such an inquiry academic, and dismissed the motion with costs. Omollo J delivered the ruling on 18th September 2015.

Key legal issues

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01

Whether the order of 28th June 2013 lapsed by operation of law

Holding

The order was served within three days (on 8th July 2013, the day it was issued), so rule 4(3) was not breached; however, the order lapsed on 14th March 2014 and the only injunctive orders in force were those in favour of the respondents

Reasoning

The court found service occurred the same day the order was issued, so Order 40 rule 4(3) was not contravened. On expiry, the interim orders were extended until the ruling on the preliminary objection delivered on 14.3.2014, after which nothing extended them. The applicant failed to fix the application for hearing, and the court held the order lapsed on 14.3.2014.

p. 2
02

Whether disobedience of the order was proved

Holding

Not determined, as there was no order in force capable of being disobeyed

Reasoning

The court reasoned that examining alleged disobedience of a lapsed order would be academic. Since the injunction in favour of the applicants had expired before the alleged interference, contempt proceedings could not stand, and the photographs and allegations of collusion with police did not need adjudication.

p. 3

Legal principles established

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  • An interim injunction under Order 40 rule 6 lapses where the suit is not determined within 12 months unless the court orders otherwise
  • Under Order 40 rule 4(3), an injunction order must be served within three days of issue, failing which it automatically lapses
  • A party who does not diligently prosecute an inter partes hearing cannot rely on a lapsed interim order as a basis for contempt

Court orders

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  1. 1.The notice of motion application dated 13th February 2015 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rule 4(1), (2), (3)
  • Civil Procedure RulesOrder 40 rule 6
  • Civil Procedure RulesOrder 40 rule 7

Cases cited (6)

  • Hadkinson vs Hadkinson
    (1952) PD 285
  • Moses P.N Njoroge & Others vs Rev. Musa Njuguna & Another
    Nakuru HCC No 247 'A' of 2004
  • Omega Enterprises vs Kenya Tourist Development Corporation
    C.A No 59 of 1993
  • Nyayo Embakasi Residents Association vs NSSF
    (2015) eKLR
  • Mobil Kitale Service Station vs Mobil Oil Kenya
    (2004) eKLR
  • Kariuki & Others vs Minister for Gender
    (2004) IKLR 229
Jurisdiction invoked
Inherent jurisdiction to punish contempt of court orders issued under Order 40 of the Civil Procedure Rules

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, "Kazungu Moli Chogo & others v Perihan Torun & others [2015] KEELC 185 (KLR)", Case Analysis (2015). Notice of motion dated 13th February 2015 (suit land case, Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/185/eng@2015-09-18

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