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ELCPartially AllowedNotice of Motion dated 25th October 2012 in HCCC suit filed 8th May 2008· [2015] KEELC 754 (KLR)

Maria Lwande & Others v Registered Trustees Of Teleposta Pension Scheme [2015] KEELC 754 (KLR)

High Court of Kenya
24 February 2015
2,603 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 interim injunctions expire automatically after 12 months if a case isn't heard, so parties must actively prosecute their suits.

What this practically means

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Executive summary

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The Defendant, a pension scheme, moved the court by 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 a declaration that interim injunction orders issued by Ang'awa J on 23rd September 2008 had lapsed, or alternatively that they be discharged, varied or set aside, with costs to the Plaintiffs. The Defendant contended the Plaintiffs had failed to prosecute the suit for over four years, that 26 Plaintiffs had already purchased their units, that the remaining 47 withheld rent accruing over Kshs. 21 million, and that their conduct disentitled them to the orders. The Plaintiffs, through Joyce Kitumbo, replied that a consent order recorded on 23rd September 2008 compromised the suit, that they sought financers as directed, and that the Defendant frustrated completion by issuing a caveat emptor notice. L. Gacheru J held that the orders of 23rd September 2008 comprised both an injunction and a consent order with directions for pre-trials, meaning the suit was ongoing and not compromised. Applying Order 40 Rule 6, made applicable to pending proceedings by Order 54, the court found the suit undetermined 12 months after grant, no extension sought, and no sufficient reason to continue the injunction. Relying on Nguruman Ltd v Ian Bonde Nielsen and Eliakim Washington Olweny v Wilson Kibor Mutai, the court declared the injunction lapsed by operation of law and allowed the application entirely with costs to the Defendant. Judgment delivered on 24th February 2015.

Key legal issues

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01

Whether Order 40 Rule 6 CPR 2010 applies to injunctions granted under the repealed rules

Holding

Yes; the suit was bound by CPR 2010 including Order 40 Rule 6

Reasoning

The injunction was granted in 2008 under the repealed rules, but Order 54 of the CPR 2010 extends the 2010 Rules to pending proceedings. Consequently the 12-month lapse provision governed the injunction issued on 23rd September 2008.

p. 4
02

Whether the injunction lapsed by operation of law

Holding

Yes; the suit was not determined within 12 months and no extension was sought

Reasoning

The injunction was issued on 23rd September 2008 and the suit was never set down for hearing. The Plaintiffs never sought extension of the orders and offered no sufficient reason for continuance, so the injunction lapsed by operation of law after 12 months.

p. 5
03

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

Holding

No; the consent order provided for pre-trials and directions, showing the suit remained live

Reasoning

The consent order required forwarding title documents and provided for a mention, pre-trials, and exchange of documents and agreed issues. These are steps in an ongoing suit, not terms of compromise, so the suit remained undetermined and the 12-month clock under Order 40 Rule 6 ran.

p. 4

Legal principles established

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  • An interlocutory injunction lapses automatically if the suit is not determined within 12 months of grant, unless the court orders otherwise for sufficient reason
  • The Civil Procedure Rules 2010 apply to proceedings pending under the repealed rules

Court orders

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  1. 1.The orders of the Honourable Court issued on 23rd September 2008 by Hon. Lady Justice Ang'awa deemed to have lapsed
  2. 2.The Defendant's application dated 25th October 2012 allowed entirely with costs to the Applicant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules 2010Order 40 Rules 6 and 7, Order 51 Rule 1, Order 54
  • Repealed Civil Procedure RulesNot specified

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
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rules 6 and 7 and Order 51 Rule 1 of the Civil Procedure Rules 2010

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 754 (KLR)", Case Analysis (2015). Notice of Motion dated 25th October 2012 in HCCC suit filed 8th May 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/754/eng@2015-02-24

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