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ELCPartially Allowed· [2016] KEELC 895 (KLR)
Edward Njoroge Mwangi v Francis Muriuki Muraguri & 2 Others [2016] [2016] KEELC 895 (KLR)
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·~10 min to read original · ~4 min briefThe bottom line
#A Kenyan land injunction automatically expired after 12 months because the plaintiff delayed, and the court appointed a neutral agent to collect rent instead.
What this practically means
#Executive summary
#The 2nd defendant moved the court by notice of motion dated 20th February 2015 under Order 40 Rules 6 and 7 of the Civil Procedure Rules, seeking a declaration that the interlocutory injunction granted on 9th March 2013 in favour of the plaintiff over the suit property Iraini/Kairia/747/27 had lapsed, or in the alternative that it be discharged, varied or set aside. The applicant was the registered proprietor of the suit property, which was charged in favour of the 3rd defendant. The plaintiff opposed, arguing that he had contracted to buy the property which was transferred to the 2nd defendant in breach, that the impugned orders were conservatory, and that the applicant had not complied with existing orders and did not come with clean hands. The 3rd defendant supported the application, contending the order was arbitrary and prejudicial since it could not realise its charge and the applicant could not collect rent. The court framed a single issue: whether the applicant had made a case for the orders sought. Relying on Order 40 Rule 6 and several authorities, it held that an injunction lapses by operation of law if the suit is not determined within twelve months unless the court had, before the lapse, been moved for extension for sufficient reason. No such application had been made. The court allowed the application in terms of prayers (2) and (4), declaring the injunction lapsed. It declined to allow the 2nd defendant to collect rent, instead directing appointment of a neutral registered estate agent to collect rent and deposit it in a joint account of the plaintiff and the 2nd and 3rd defendants. Costs were to abide the outcome of the suit.
Key legal issues
#01
Whether the injunction granted on 9th March 2013 lapsed under Order 40 Rule 6
Holding
The injunction lapsed by operation of law after twelve months as the suit was not determined and no application for extension was made
Reasoning
Order 40 Rule 6 places the burden on the plaintiff to set the suit down for hearing within twelve months of the grant. The court retains discretion to extend for sufficient reason, but the extension must be sought before the injunction lapses; once twelve months elapsed without hearing or application, the injunction automatically lapsed by operation of law.
p. 4
Legal principles established
#- An interlocutory injunction lapses by operation of law where the suit is not determined within twelve months of the grant and no sufficient reason for extension was placed before the court before the lapse
Court orders
#- 1.The application dated 20th February 2015 is allowed in terms of prayer (2) and (4)
- 2.A registered estate agent to be appointed by the plaintiff, the 2nd defendant and the third defendant within 14 days, failing which the court shall appoint one from its panel
- 3.The agent shall collect the rent effective 1st July 2016 and deposit it in a joint account in the names of the plaintiff, the 2nd defendant and the third defendant
- 4.Costs of the application to abide the outcome of the suit
- Jurisdiction invoked
- Order 40 Rules 6 and 7 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Edward Njoroge Mwangi v Francis Muriuki Muraguri & 2 Others [2016] [2016] KEELC 895 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/895/eng@2016-05-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.