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ELCDismissedNotice of motion dated 2nd February 2017 (in a suit arising from notice of motion dated 9th September 2016)· [2017] KEELC 2780 (KLR)

George Abonyo Obete T/A Rakwel Body Builders v Ecobank Kenya Limited [2017] KEELC 2780 (KLR)

Environment and Land Court
10 May 2017
SKS. M. Kibunja
835 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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George Abonyo Obete, trading as Rakwel Body Builders, moved the court by notice of motion dated 2nd February 2017 seeking reinstatement of interim orders that were vacated on 1st February 2017 in an application pending since September 2016. The motion was supported by an affidavit of his counsel, Bruce Odwuor Odeny, and opposed by Ecobank Kenya Ltd through a replying affidavit of its counsel, Ocharo Kebira. The court framed three issues: whether the application was brought under the correct provisions, whether the Plaintiff established reasonable grounds for the order, and costs. The court found that interim orders issued on 9th September 2016 and extended on 11th October 2016 had been discharged on 1st February 2017 after the Plaintiff failed to file and serve submissions within the timelines directed. Submissions filed on 17th November 2016 were out of time without any extension sought, and were never served on the Defendant's counsel. The court held this breach of the duty under Section 1A(3) of the Civil Procedure Act to comply with directions was negligence by counsel, not an excusable mistake, with the party's recourse lying against the advocate. The court also held that Order 40 Rule 1 of the Civil Procedure Rules, governing the grant of temporary injunctions, had no relevance to reinstatement of a discharged interim injunction. The notice of motion was dismissed with costs on 10th May 2017.

Key legal issues

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01

Whether the application was brought under the correct provisions of the law

Holding

No; Order 40 Rule 1 CPR is inapplicable to reinstatement of a vacated interim injunction

Reasoning

The motion sought reinstatement of an interim injunction discharged on 1st February 2017. Order 40 Rule 1 sets out cases in which temporary injunctions may be granted, not the mechanism for reviving a discharged order. Its purpose bears no relevance to the relief sought, so the application rested on the wrong legal foundation.

p. 2
02

Whether the Plaintiff established reasonable grounds for reinstatement

Holding

No; the delay resulted from the Plaintiff's and his counsel's negligent failure to comply with the directions of 11th October 2016 on filing and serving submissions

Reasoning

The Plaintiff filed submissions out of time without seeking extension and never served them on the Defendant's counsel, whose own 14-day period could only start after service. This breached the duty under Section 1A(3) of the Civil Procedure Act to comply with directions and further the overriding objective, causing delay and additional costs. The court held the default was negligence, not an excusable mistake, with the party's remedy lying against the advocate.

p. 2

Legal principles established

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  • A party must comply with the court's directions and timelines; failure by counsel is negligence for which the party has recourse against the advocate, and does not excuse non-compliance.
  • Order 40 Rule 1 of the Civil Procedure Rules, which governs when temporary injunctions may be granted, does not provide a basis for reinstating a discharged interim injunction.

Court orders

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  1. 1.The notice of motion dated 2nd February 2017 is dismissed with costs.

Authorities

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Legislation

  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 1A
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 1A(1)
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 1A(3)
  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (3)

  • Charles Omwata Omwoyo –V- African Highlands & Produce C. Ltd
    (2002) eKLR
  • Ketteman –V- Hausel Properties Ltd
    (1988) 1 All ER 38
  • Tana & Athi River Development Authority –V- Jeremiah KimIgho & 3 Others
    (2015) eKLR
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court over the interlocutory application; Civil Procedure Act (Cap 21) and Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "George Abonyo Obete T/A Rakwel Body Builders v Ecobank Kenya Limited [2017] KEELC 2780 (KLR)", Case Analysis (2017). Notice of motion dated 2nd February 2017 (in a suit arising from notice of motion dated 9th September 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2780/eng@2017-05-10

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