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ELCDismissedMalindi ELC Case No. 80 of 2014 (Osc. No. 6 of 2016)· [2016] KEELC 287 (KLR)

Damaris Akinyi Nondi & another v Asghar Khanbai & 2 others [2016] KEELC 287 (KLR)

Environment and Land Court
14 November 2016
960 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 ruled an old land injunction stays valid even after procedural rules changed, and the property owner couldn't use the delay to have it removed.

What this practically means

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Executive summary

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The Defendant filed a Notice of Motion dated 11th February, 2016 seeking a declaration that the injunctive orders issued on 27th May, 2011 had lapsed under Order 40 Rule 6 of the Civil Procedure Rules, 2010, and dismissal of the suit for want of prosecution. The 1st Plaintiff opposed, deponing that the injunction was issued on 14th April, 2010, before the 2010 Rules came into force on 10th September, 2010, and that the Rules do not operate retrospectively. The court, Angote J, found that the temporary prohibitory injunction had been granted by Azangalala J on 14th April, 2010 pursuant to the repealed Order XXXIX, and a similar order by Ojwang J on 27th May, 2011. Relying on section 23(3)(b) and (c) of the Interpretation and General Provisions Act, the court held that the repeal of Order XXXIX did not affect rights acquired under it, and Order 40 Rule 6 did not apply. Even if it did, the court would be slow to discharge an injunction where the Plaintiff was not the cause of delay, and the doctrine of lis pendens protects suit property and innocent purchasers. On the prayer for dismissal for want of prosecution, the court found that the delay arose from the Plaintiffs' advocate's unprosecuted application to cease acting, which could not be visited upon the Plaintiffs. The court dismissed the application with no order as to costs.

Key legal issues

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01

Whether Order 40 Rule 6 of the Civil Procedure Rules, 2010 applies to an injunction granted before its commencement

Holding

It does not; the injunction was granted under the repealed Order XXXIX and survives by virtue of section 23(3)(b) and (c) of the Interpretation and General Provisions Act

Reasoning

The court held that the injunction was granted on 14th April, 2010 under Order XXXIX, which was subsequently repealed when the Civil Procedure Rules, 2010 came into force on 10th September, 2010. Under section 23(3)(b) and (c) of the Interpretation and General Provisions Act, a repeal does not affect the previous operation of the repealed law or rights acquired under it. Order 40 Rule 6 therefore does not apply.

p. 2
02

Whether the court should nonetheless discharge the injunction given the lapse of time

Holding

The court would be slow to discharge an injunction where the Plaintiff is not the cause of the delay, and lis pendens protects suit property from dealings pending determination

Reasoning

The court reasoned that even if Order 40 Rule 6 applied, it would be slow in discharging an injunction after a year where the Plaintiff has not caused the delay. Under the doctrine of lis pendens, a party is not supposed to deal with suit property pending the suit, and an injunction protects both the Plaintiff and innocent members of the public who might otherwise purchase the property.

p. 2
03

Whether the suit should be dismissed for want of prosecution

Holding

Dismissal was not warranted because the delay was attributable to the Plaintiffs' advocate, not the Plaintiffs

Reasoning

The record showed the Plaintiffs' advocate filed an application to cease acting in 2014 but did not prosecute it, which explained why the matter was never fixed for hearing. Since it was the advocate, not the Plaintiffs, who caused the delay, the court found the Plaintiff had shown plausible reasons for not setting down the matter for hearing since 31st March, 2014.

p. 3

Legal principles established

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  • An injunction granted under a repealed provision survives the repeal of that provision, and the new procedural rule cannot operate retrospectively to defeat rights acquired under the repealed law
  • Where an injunction is in force pending the hearing of a suit, it protects both the Plaintiff's interest and innocent members of the public from purchasing suit property
  • Delay in fixing a matter for hearing caused by the Plaintiffs' advocate cannot be visited upon the Plaintiff

Court orders

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  1. 1.Dismissal of the Application dated 11th February, 2016
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rule 6
  • Civil Procedure Rules (repealed)Order XXXIX
  • Interpretation and General Provisions ActSection 23(3)(b) and (c)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution; suit transferred to the court pursuant to directions by Mukunya J

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, "Damaris Akinyi Nondi & another v Asghar Khanbai & 2 others [2016] KEELC 287 (KLR)", Case Analysis (2016). Malindi ELC Case No. 80 of 2014 (Osc. No. 6 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/287/eng@2016-11-14

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