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ELCDismissed· [2018] KEELC 1990 (KLR)

Eric Ochieng v Fredrick Aila Onyango & another [2018] KEELC 1990 (KLR)

Environment and Land Court
31 July 2018
2,865 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 Defendants (Applicants in the application) sought to discharge, set aside and/or review interim restraining orders issued on 16/5/2018 and extended on 30/5/2018, restraining their construction project pending hearing of an application by the Plaintiff. They also sought a site visit and security for costs of Kshs.615,803,555.80, arguing that the injunction halted their project, exposed them to losses on loans, and that pooled water on site posed safety and health risks. The court first determined the foundational premise: whether the orders were issued ex parte. Relying on Order 40 rule 4 of the Civil Procedure Rules, 2010, the court held that ex parte proceedings envisage the absence of one side; since the Applicants had been served, appeared in court through counsel and participated both when the order issued and when it was extended, the orders were inter partes. The prayer to discharge or set aside the orders therefore failed. The review prayer also failed because review not based on error on the face of the record or new evidence must be heard by the judge who made the order - Kibunja J - who was on leave for about three months. The security for costs prayer failed as well: security concerns costs of the suit, not the value of the subject matter, and the Applicants did not show the Respondent could not pay; his evidence of employment and home ownership was unrebutted. The application was dismissed with costs.

Key legal issues

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01

Whether the restraining order was issued ex parte

Holding

The order was issued inter partes, not ex parte

Reasoning

The court examined Order 40 rule 4(1)-(3) of the Civil Procedure Rules and held that ex parte proceedings envisage the absence of one side, which is why immediate service is mandated. On 9/5/2018 the court declined an ex parte order and directed service; both counsel appeared on 16/5/2018 when the order issued and again on 30/5/2018 when it was extended. The Applicants' counsel participated throughout, so the order was inter partes.

p. 2
02

Whether the orders could be discharged or set aside under Order 40 rule 7

Holding

The prayer was rejected because it rested on the unproven premise that the order was ex parte

Reasoning

Order 40 rule 7 permits discharge, variation or setting aside of any injunction on application by a dissatisfied party. But the court applies law to proven or accepted facts; the Applicants' asserted fact that the order was ex parte was rejected, so the sound legal exposition built on that premise could not support the relief.

p. 3
03

Whether the court could entertain the review prayer

Holding

The review prayer could not be handled by this court

Reasoning

Under Order 45 rule 2(1)-(3), review on grounds other than error on the face of the record or discovery of new matter must be heard by the judge who made the order, or his successor, or a designate where the judge is precluded for three months. Kibunja J issued the order and was on leave for about three months; the Applicants should have waited for him.

p. 3
04

Whether security for costs should be provided

Holding

The prayer for security for costs failed

Reasoning

Security for costs protects a defendant against a plaintiff unable to pay costs if he loses. The Applicants sought an amount equal to the project cost, confusing the value of the subject matter with costs of the suit. They neither proposed a modest figure of expected costs nor demonstrated that the Respondent could not pay; his evidence of employment and home ownership went unchallenged.

p. 3

Legal principles established

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  • An ex parte injunction connotes the absence and non-participation of one side; where the other side has been served, is in court and participates, any order issued is inter partes
  • An ex parte injunction may be granted only once for not more than 14 days and extended only once, and it lapses automatically if not served with the application and pleading within three days
  • Save for review on error apparent on the face of the record or discovery of new evidence, an application for review must be heard by the judge who made the order
  • Security for costs is directed at the costs of the suit, not the value of the subject matter, and the applicant must demonstrate that the other party will not be able to satisfy an order for costs

Court orders

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  1. 1.The Notice of Motion dated 8/6/2018 is dismissed
  2. 2.Costs of the application awarded to the Respondent/Plaintiff

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3A, 4, 5 and 80
  • Civil Procedure Rules, 2010Order 26 Rule 1
  • Civil Procedure Rules, 2010Order 40 Rules 4(1), 4(2), 4(3), 7 and 10
  • Civil Procedure Rules, 2010Order 45 Rules 1, 2(1), 2(2) and 2(3)
  • Civil Procedure Rules, 2010Order 51 Rule 1

Cases cited (3)

  • Caroline Wanjiru Wanjihia & Another v I & M Bank
    HCC No. 160 of 2013, NRB
  • Kenya Commercial Bank v Kipsang Sawe Sisei
    CA No. 53 of 2002, NRB
  • Joel K. Kibiwott & others v The Registered Trustees of Monastery Our Lady of Victory
    HCC No. 146, Nakuru
Jurisdiction invoked
Sections 1A, 1B, 3A, 4, 5 and 80 of the Civil Procedure Act (Cap 21) and Orders 26, 40, 45 and 51 of the Civil Procedure Rules, 2010

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, "Eric Ochieng v Fredrick Aila Onyango & another [2018] KEELC 1990 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1990/eng@2018-07-31

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