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ELCPartially AllowedNotice of Motion dated 18th May 2017· [2017] KEELC 2018 (KLR)

Nicholus Kinyua Mbui v Keysian Auctioneers & another [2017] KEELC 2018 (KLR)

Environment and Land Court
16 June 2017
BOB. N. Olao
473 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiff moved the court by Notice of Motion dated 18th May 2017 under Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules and Sections 1, 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act, seeking a temporary injunction restraining the defendants from selling, dealing with, alienating or disposing of parcel MUTIRA/KAGUYU/1887 pending the hearing and determination of the suit. The plaintiff's supporting affidavit deponed that he took a loan of Ksh. 5,500,000 secured by the suit property and has been servicing it, that the defendants intended to sell the property without issuing proper notice, and that the National Irrigation Board had undertaken to pay all monies owed to the 2nd defendant. Though served with the application, summons and plaint on 23rd May 2017, and having entered appearance through Muriu Mungai & Co. Advocates on 7th June 2017, the defendants filed neither a replying affidavit nor grounds of opposition. At the inter partes hearing on 15th June 2017, their counsel sought three days to respond, but the court found the defendants had had sufficient time and no explanation for the default was given. Holding that it had no material on which to exercise discretion in the defendants' favour, the court (Olao J) treated the application as unopposed and allowed it in terms of prayer 3, granting the temporary injunction. Costs were ordered to be in the cause, and the parties were directed to comply with pre-trial directions so that the suit could be heard and determined within twelve months.

Key legal issues

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01

Whether a temporary injunction should issue over suit property pending hearing

Holding

Granted as unopposed; the plaintiff took a loan of Ksh. 5,500,000 secured by the suit property, has been servicing it, and alleges no proper statutory notice of sale and an undertaking by the National Irrigation Board to pay the 2nd defendant

Reasoning

The application was served on the defendants on 23rd May 2017 and they entered appearance through Muriu Mungai & Co. Advocates on 7th June 2017, yet by the inter partes hearing on 15th June 2017 no replying affidavit or grounds of opposition had been filed. Counsel for the defendants sought three days to file a response, but the court found no explanation for the delay and no material justifying more time. The application, therefore, proceeded as unopposed and was allowed in terms of prayer 3, with costs in the cause.

p. 2

Legal principles established

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  • An unopposed interlocutory application supported by an affidavit may be granted where the respondent, though served, files no response and gives no explanation for the delay

Court orders

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  1. 1.Temporary injunction restraining the defendants, their agents, servants and employees from selling, dealing with, interfering with, alienating or disposing of parcel MUTIRA/KAGUYU/1887 pending the hearing and determination of the suit
  2. 2.Costs in the cause
  3. 3.Parties directed to comply with pre-trial directions so the suit is heard and determined within 12 months

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2, 3, 4
  • Civil Procedure ActSections 1, 1A, 1B, 3, 3A, 63(e)
Jurisdiction invoked
Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules and Sections 1, 1A, 1B, 3, 3A and 63(e) 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, "Nicholus Kinyua Mbui v Keysian Auctioneers & another [2017] KEELC 2018 (KLR)", Case Analysis (2017). Notice of Motion dated 18th May 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2018/eng@2017-06-16

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