Cosmus Ngugi David v Fatuma Shariff Salim & another [2018] KEELC 1788 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Variance between orders granted and orders extracted
The orders extracted and served on 2nd August 2017 were at a complete variance with the orders granted by Yano J, and constituted an abuse of the court process which the court had a duty to correct.
The court found that Yano J granted orders in terms of prayers 1 and 2, which required service of the application for inter-partes hearing, but the plaintiff instead extracted orders in terms of prayer 3, being the substantive temporary injunction, without fixing the inter-partes hearing date as ordered. The court held it had a duty ex debitio justitiae to correct such irregularly extracted orders and set them aside.
Discharge of the interim injunction granted ex parte
The temporary injunction granted by Yano J on 1st August 2017 was discharged and set aside because the plaintiff irregularly enjoyed the orders without inter-partes consideration.
Having found that the extracted orders were irregular and that the plaintiff failed to fix the inter-partes hearing date as ordered, the court held that the plaintiff had been unduly and irregularly enjoying the injunction. It therefore discharged and set aside the temporary injunction as sought in prayer 2 of the 2nd Defendant's application, while permitting the plaintiff to fix the application for inter-partes hearing afresh.
Striking out the suit for want of capacity of the 1st Defendant to sell
The prayer to strike out the plaintiff's suit was not granted; the allegations of lack of capacity, absence of Letters of Administration or Power of Attorney were held to be matters for trial.
The 2nd Defendant argued the 1st Defendant had no legal capacity to execute the sale agreement, having neither Letters of Administration nor Power of Attorney. The court held these were matters for consideration later in the life of the case and that the application was based on the wrong facts. The striking-out prayer was therefore not granted.
Legal principles established
#- Orders extracted must conform to the orders actually granted by the court, and the court has a duty to correct orders extracted in variance with what was granted
- A party who enjoys interlocutory orders without subjecting them to inter-partes consideration may have them discharged and set aside
Court orders
#- 1.The orders extracted by the Plaintiff and issued on 2nd August 2017 were set aside
- 2.The temporary orders of injunction granted by the Honourable Yano J on 1st August 2017 were discharged and set aside
- 3.The Plaintiff is at liberty to fix and serve the application dated 31st July 2017 for inter-partes hearing in the usual manner through the Court Registry
- 4.Each party shall bear their own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit; interlocutory application under the court's inherent powers (no specific provision stated in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cosmus Ngugi David v Fatuma Shariff Salim & another [2018] KEELC 1788 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1788/eng@2018-09-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.