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ELCDismissedNotice of Motion dated 27th March 2017 (Kajiado High Court suit, number not stated in judgment)· [2018] KEELC 4243 (KLR)

Zachary Okemwa Nyandieka v Standard Chartered Bank Kenya Limited & another [2018] KEELC 4243 (KLR)

High Court of Kenya
13 February 2018
1,304 words in judgment
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The bottom line

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A Kenyan court threw out a landowner's attempt to stop his bank selling his Ngong land, warning that injunctions lapse if you sleep on your case.

What this practically means

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Executive summary

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This was a ruling on the Plaintiff's Notice of Motion dated 27th March 2017, brought under Order 40 rules 1, 2 and 3 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking a temporary injunction restraining the Defendants from selling land parcel NGONG/NGONG/26740. The Plaintiff, Zachary Okemwa Nyandieka, argued that interim orders granted in KAJIADO SPMCC NO. 4 of 2016 on 12th January 2016 and periodically extended remained in force, and that the pending status of that suit - stayed by Malindi High Court Petition No. 3 of 2016 - justified fresh injunctive relief in the High Court. The 1st Defendant's Legal Manager, Boniface Machuki, opposed the application, contending that the interim orders lapsed on 11th January 2017 under Order 40 rule 6, that the Plaintiff was indebted to the tune of Kshs. 3,525,247.65 which would soon exceed the value of the suit property, and that the Plaintiff's failure to prosecute his application in the lower court was due to indolence. Applying the Giella v Cassman Brown principles and the definition of a prima facie case in Mrao Ltd v First American Bank, the court, Christine Ochieng J, found no prima facie case: the plaintiff came with unclean hands, the ex parte injunctions had lapsed, and the Chief Magistrate's Court now had jurisdiction over land matters, suggesting forum shopping. The application was dismissed with costs on 13th February 2018.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with a probability of success

Holding

He did not; he presented no proper material justifying an injunction and had obtained interim relief in the lower court without prosecuting his application there

Reasoning

Applying Giella v Cassman Brown and Mrao Ltd v First American Bank, the court found the plaintiff offered no material showing an apparent infringement of a right. Injunctions being equitable, the clean-hands principle counted against him: he obtained interim orders in January 2016 in the subordinate court but made no effort to prosecute that suit, instead seeking parallel injunctive relief in the High Court.

p. 2
02

Whether the interim orders in KAJIADO SPMCC NO. 4 of 2016 had lapsed

Holding

The orders lapsed on 11th January 2017 by operation of Order 40 rule 6 of the Civil Procedure Rules

Reasoning

The suit in which the interlocutory injunction was granted on 12th January 2016 had not been determined within twelve months. Under Order 40 rule 6 the injunction lapsed unless the court ordered otherwise for sufficient reason. The plaintiff argued the orders persisted, but the statutory lapse applied and his own inaction, not any impediment, explained the failure to prosecute.

p. 1
03

Whether the plaintiff was forum shopping

Holding

Yes; the Chief Magistrate's Court now had jurisdiction over land matters and the plaintiff gave no reason for not prosecuting his suit there

Reasoning

The court observed that the stay arising from the Malindi High Court Petition No. 3 of 2016 no longer obtained, and the Chief Magistrate's Court could now hear land matters. The plaintiff had not demonstrated any efforts to prosecute the pending subordinate court suit, suggesting the High Court application was merely a stratagem to obtain interim orders from a different forum.

p. 2

Legal principles established

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  • The Giella v Cassman Brown principles govern the grant of temporary injunctions in Kenya.
  • An ex parte injunction may be granted only once for not more than fourteen days and extended only once, by consent or court order, for a further period not exceeding fourteen days.
  • An interlocutory injunction lapses where the suit is not determined within twelve months from the grant unless the court orders otherwise for sufficient reason.

Court orders

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  1. 1.Dismissal of the Plaintiff's Notice of Motion dated 27th March 2017 with costs

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 40 rules 1, 2, 3
  • Civil Procedure RulesOrder 40 rule 4(2)
  • Civil Procedure RulesOrder 40 rule 6

Cases cited (3)

  • Giella Vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mrao Limited Vs. First American Bank of Kenya Limited & 2 others
    (2003) KLR 125
  • Malindi High Court Constitutional Petition No. 3 of 2016
Jurisdiction invoked
Order 40 rules 1, 2 and 3 of the Civil Procedure Rules and Section 3A 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, "Zachary Okemwa Nyandieka v Standard Chartered Bank Kenya Limited & another [2018] KEELC 4243 (KLR)", Case Analysis (2018). Notice of Motion dated 27th March 2017 (Kajiado High Court suit, number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4243/eng@2018-02-13

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