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ELCOtherNot stated in judgment (Kisumu Environment and Land suit with related Kisumu High Court Succession Causes No. 452, 453 of 2008 and 75 of 2005)· [2016] KEELC 731 (KLR)

Thomas Omondi Owako & another v David Oscar Owako & 2 others [2016] KEELC 731 (KLR)

Environment and Land Court
8 June 2016
SKS.M. Kibunja
1,109 words in judgment
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The bottom line

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The Kisumu Environment and Land Court confirmed that Kenyan ex parte injunction orders lapse automatically after 12 months unless extended, so parties must track and renew them.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Kisumu arose from directions sought on 27th April 2016 in a suit by the Plaintiffs restraining the Defendants from dealing with specified Kisumu/Muhoroni land parcels forming part of the estate of Imelda Akinyi Owako (deceased), in the face of pending succession causes. Counsel for the 2nd and 3rd Defendants raised two issues: whether the matters should be handled in the related Succession Cause, and whether the order of 26th September 2013 restrained Kibos Sugar and Allied Industries from releasing held funds. The 1st Defendant, in person, contended the court lacked jurisdiction given the Succession Cause and that the Plaintiffs lacked capacity to stop the release of funds. Plaintiffs' counsel maintained the suit protected their interests against questionable transfers and intermeddling, and sought maintenance of the status quo. After perusing the record, Justice S.M. Kibunja found that the ex parte injunction orders of 26th September 2013, last extended on 3rd July 2014, had lapsed on 22nd July 2014 under Order 40 rule 4(2) and 6. Consequently, the 1st Defendant's undated-served motion of 31st July 2014 seeking their discharge was marked abandoned as overtaken by events. The 1st Defendant was directed to file and serve a reply to the Plaintiffs' notice of motion dated 25th September 2013 within 14 days, and the parties were directed to fix that motion for inter partes hearing without delay. No costs order was made; the ruling issued directions rather than disposing of the suit or the substantive injunction application.

Key legal issues

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01

Lapse of ex parte injunction orders

Holding

The ex parte orders of 26th September 2013 lapsed on 22nd July 2014, having last been extended on 3rd July 2014, under Order 40 rule 4(2) and 6.

Reasoning

The court perused the record and found the inter partes hearing of the Plaintiffs' motion had never taken place and the interim orders had not been renewed after the extension of 3rd July 2014. Under Order 40 rule 4(2) and 6, interim injunctions granted ex parte expire if not extended, so the orders of 26th September 2013 were no longer in force.

p. 2
02

Fate of the 1st Defendant's motion to set aside the lapsed orders

Holding

Marked as abandoned; moot because the orders sought to be discharged had lapsed.

Reasoning

The 1st Defendant's notice of motion of 31st July 2014 sought discharge of orders that no longer existed. The court also noted there was no evidence of service and no replying papers had been filed. It therefore marked the application abandoned and instead directed the 1st Defendant to file a reply to the Plaintiffs' motion under Order 51 Rule 14.

p. 2
03

Conduct of the Plaintiffs' inter partes injunction application

Holding

Directions given for it to be heard expeditiously, with the 1st Defendant to file a reply within 14 days.

Reasoning

The court observed that the inter partes hearing of the Plaintiffs' notice of motion dated 25th September 2013 had not yet occurred, that the 1st Defendant had filed no replying papers to it, and that delay should be avoided given the pending Succession Cause objections. It directed service of a reply within 14 days and immediate fixing of a hearing date.

p. 2

Legal principles established

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  • Ex parte interim orders under Order 40 rule 4(2) and 6 of the Civil Procedure Rules lapse automatically if not extended and cannot be treated as subsisting
  • A party unhappy with an interlocutory order must seek its variation, review or setting aside rather than disregard it
  • An application that is not served timeously and is overtaken by events may be marked as abandoned

Court orders

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  1. 1.Declared that the ex parte orders of 26th September 2013, last extended on 3rd July 2014, lapsed on 22nd July 2014
  2. 2.Marked the 1st Defendant's notice of motion dated 31st July 2014 as abandoned for failure to serve it without undue delay and for having been overtaken by events
  3. 3.Directed the 1st Defendant to file and serve his reply to the Plaintiffs' notice of motion dated 25th September 2013 within 14 days
  4. 4.Directed that a hearing date for the Plaintiffs' notice of motion dated 25th September 2013 be fixed without further undue delay

Authorities

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Legislation

  • Civil Procedure ActOrder 40 rule 4(2) and 6
  • Civil Procedure RulesOrder 51 Rule 14
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over land parcels Kisumu/Muhoroni/514, 114, 1343–1345, Mohoroni/Songor 10817 and Kisumu Municipality/16653; not challenged on record beyond 1st Defendant's oral objection

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, "Thomas Omondi Owako & another v David Oscar Owako & 2 others [2016] KEELC 731 (KLR)", Case Analysis (2016). Not stated in judgment (Kisumu Environment and Land suit with related Kisumu High Court Succession Causes No. 452, 453 of 2008 and 75 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/731/eng@2016-06-08

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