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ELCPartially AllowedNot stated in the judgment as provided· [2015] KEELC 752 (KLR)

Maria Lwande & others v Registered Trustees of Teleposta Pension Scheme [2015] KEELC 752 (KLR)

High Court of Kenya
19 March 2015
LGL. GACHERU
2,574 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court confirmed that injunctions automatically expire after 12 months if a case isn't prosecuted, freeing the pension scheme's property.

What this practically means

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Executive summary

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The Defendant, a pension scheme, brought a Notice of Motion dated 25th October 2012 under Order 40 Rules 6 and 7 and Order 51 Rule 1 of the Civil Procedure Rules 2010 seeking declaration that the restraining orders issued by Ang'awa J on 23rd September 2008 had lapsed, or in the alternative that they be discharged, varied or set aside, with costs. The Defendant contended that the Plaintiffs had failed to prosecute the suit since 2008, that 20 to 26 Plaintiffs had already purchased housing units, that the remaining 47 Plaintiffs withheld rent totalling over Kshs. 21 million, and that the Plaintiffs were misusing the injunction to the detriment of the scheme's 7,590 pensioners. The Plaintiffs, through the replying affidavit of Joyce Kitumbo, asserted that a consent order recorded on 23rd September 2008 compromised the suit, and that the Defendant's refusal to accept completion funds and its caveat emptor notice frustrated the sale. Justice L. Gacheru held that two sets of orders were issued on 23rd September 2008 - an injunction and a consent order - and that the consent order, which provided for pre-trial steps and a mention date, did not compromise the suit. Applying Order 40 Rule 6, which applies to pending proceedings by virtue of Order 54, the court found the injunction had lapsed automatically after 12 months of non-determination, absent extension or sufficient reason, relying on Nguruman Ltd v Ian Bonde Nielsen and Eliakim Washington Olweny v Wilson Kibor Mutai. The application was allowed entirely with costs to the Defendant.

Key legal issues

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01

Whether the injunction of 23rd September 2008 lapsed under Order 40 Rule 6

Holding

The injunction lapsed automatically after 12 months as the suit was not determined, no extension was sought and no sufficient reason for continuation was given

Reasoning

Order 40 Rule 6 is in mandatory terms: an interlocutory injunction lapses if the suit is not determined within 12 months unless the court orders otherwise for sufficient reason. The suit filed in 2008 was never set down for hearing, the Plaintiffs never sought extension, and their conduct caused delay. The lapse occurs by operation of law without further order, though the court declared it.

p. 4
02

Whether the consent order of 23rd September 2008 compromised the suit

Holding

It did not; the consent order contemplated continued pre-trial steps and hearing, showing the suit remained ongoing

Reasoning

The consent order required the Defendant's advocate to forward title documents, set a mention date of 18th November 2008 to confirm purchasers, and directed exchange of documents and agreed issues within 15 days. These are pre-trial steps inconsistent with compromise; the suit was to be set down for hearing after pre-trials.

p. 4
03

Whether the Plaintiffs offered sufficient reason for the injunction to continue

Holding

No; the Plaintiffs did not set the suit down for hearing nor explain why the injunction should persist

Reasoning

The Plaintiffs bore the duty to convince the court why the injunction should continue. They neither prosecuted the suit nor sought extension, and their reliance on the consent order failed because that order contemplated continued proceedings. Injunctive orders cannot remain in force indefinitely while the suit lies unprosecuted.

p. 5

Legal principles established

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  • An interlocutory injunction lapses automatically by operation of law where the suit in respect of which it was granted is not determined within 12 months, unless the court orders otherwise for sufficient reason
  • The Civil Procedure Rules 2010 apply to proceedings pending under the repealed rules, so Order 40 Rule 6 governs injunctions granted under the former rules

Court orders

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  1. 1.The orders of injunction issued on 23rd September 2008 by Hon. Lady Justice Ang'awa declared to have lapsed by operation of Order 40 Rule 6 of the Civil Procedure Rules 2010
  2. 2.The Defendant's Notice of Motion dated 25th October 2012 allowed entirely
  3. 3.Costs of the application to the Defendant/Applicant

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40 Rule 6
  • Civil Procedure Rules 2010Order 40 Rule 7
  • Civil Procedure Rules 2010Order 51 Rule 1
  • Civil Procedure Rules 2010Order 54
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A

Cases cited (2)

  • Nguruman Ltd. vs. Ian Bonde Nielsen & 2 Others
    (2014) eKLR
  • Eliakim Washington Olweny vs. Wilson Kibor Mutai & Another
    (2013) eKLR
Jurisdiction invoked
Order 40 Rules 6 and 7 and Order 51 Rule 1 of the Civil Procedure Rules 2010; Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Maria Lwande & others v Registered Trustees of Teleposta Pension Scheme [2015] KEELC 752 (KLR)", Case Analysis (2015). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/752/eng@2015-03-19

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