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ELCPartially AllowedNotice of Motion dated 15th November 2017· [2017] KEELC 349 (KLR)

Selian Holdings Company Limited v NIC Bank Limited [2017] KEELC 349 (KLR)

Environment and Land Court
5 December 2017
LGL. GACHERU
1,891 words in judgment
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The bottom line

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A Kenyan land court clarified a wrongly drafted injunction order and confirmed it can still grant short-term protection after rejecting an injunction, if an appeal is planned.

What this practically means

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Executive summary

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This ruling by L. Gacheru J of the Environment and Land Court at Thika, delivered on 5th December 2017, determined a Notice of Motion dated 15th November 2017 by the Defendant seeking review and setting aside of ex parte injunction orders issued on 14th November 2017. The Defendant argued the court lacked jurisdiction, had become functus officio after dismissing the Plaintiff's injunction application on 10th November 2017, and that the fresh injunction application was res judicata; it also complained the blanket order carried no conditions or security. The Plaintiff countered that the issues raised were matters of appeal, not review. The court held that it had intended to grant only a narrow injunction pending the filing of a substantive application or appeal before the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules, with a 14-day lifespan, but the registry drafter had incorporated all the court's notes into the extracted order, creating ambiguity. That constituted a mistake or error apparent on the face of the record under Order 45 Rule 1, justifying review and clarification. Relying on Erinford Properties v Cheshire County Council and Madhupaper International Ltd v Kerr, the court affirmed its jurisdiction to grant an injunction pending the filing of an appeal even after dismissing an interlocutory injunction application. It issued an injunction in favour of the Plaintiff for 14 days pending filing at the Court of Appeal, with costs in the cause.

Key legal issues

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01

Whether the order of 14th November 2017 was ambiguous and reviewable

Holding

Yes - the drafter included all the court's notes, making the order unclear; this was a mistake apparent on the face of the record warranting review.

Reasoning

The court had intended a narrow injunction pending filing of appeal, with a 14-day timeline, but the registry drafted the order incorporating every note made during the hearing. Under Order 45 Rule 1 the court has discretion to review an order on account of a mistake or error apparent on the face of the record or for sufficient reasons. The incorporation of extraneous notes constituted such an error.

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02

Whether the court was functus officio or the application res judicata after the 10th November 2017 dismissal

Holding

No - following Erinford Properties and Madhupaper, the court has jurisdiction to issue an injunction pending filing of an appeal even after dismissing an injunction application.

Reasoning

The court relied on the Erinford principle as applied in Madhupaper International Ltd v Kerr: where an interlocutory injunction is dismissed, the court may still grant a temporary injunction to preserve the subject matter so that an intended appeal is not rendered nugatory. The 13th November application was directed at an intended appeal, not a repeat of the dismissed application.

p. 3

Legal principles established

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  • A court may grant an injunction pending the filing of an appeal after dismissing an application for interlocutory injunction (Erinford principle)
  • A drafting error or ambiguity in an extracted order is a sufficient reason for review under Order 45 Rule 1

Court orders

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  1. 1.Reviewed and clarified the ambiguous order issued on 14th November 2017
  2. 2.Issued an injunction in favour of the Plaintiff pending the filing of a substantive application for injunction and/or Appeal before the Court of Appeal
  3. 3.Injunction to remain in force for a period of 14 days from the date of the ruling
  4. 4.Costs in the cause

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 51 Rule 1
  • Civil Procedure Rules 2010Order 45 Rule 1; Order 45 Rule 2
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (2)

  • Erinford Properties Ltd Vs Cheshire County Council
    (1974) 2 ALL ER 448
  • Madhupaper International Ltd Vs Kerr
    (1985) KLR 840
Jurisdiction invoked
Order 45 Rule 1, Order 51 Rule 1 and Sections 1A, 3A, 63(e) and 80 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, "Selian Holdings Company Limited v NIC Bank Limited [2017] KEELC 349 (KLR)", Case Analysis (2017). Notice of Motion dated 15th November 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/349/eng@2017-12-05

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