Zachary Okemwa Nyandieka v Standard Chartered Bank Kenya Limited & another [2018] KEELC 4243 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success
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
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.
Whether the interim orders in KAJIADO SPMCC NO. 4 of 2016 had lapsed
The orders lapsed on 11th January 2017 by operation of Order 40 rule 6 of the Civil Procedure Rules
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.
Whether the plaintiff was forum shopping
Yes; the Chief Magistrate's Court now had jurisdiction over land matters and the plaintiff gave no reason for not prosecuting his suit there
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.
Legal principles established
#- 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
#- 1.Dismissal of the Plaintiff's Notice of Motion dated 27th March 2017 with costs
- Jurisdiction invoked
- Order 40 rules 1, 2 and 3 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.