Purity Wanjiku Nderitu & another v Humprey Wang’ombe Kahariri & another [2018] KEELC 4337 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Effect of Order 40 Rule 6 on a twelve-month-old interlocutory injunction
The injunction granted on 9th September 2013 lapsed automatically on 9th September 2014 and could only have been extended before lapse for sufficient reason
Order 40 Rule 6 provides that an interlocutory injunction lapses where the suit is not determined within twelve months unless the court orders otherwise for sufficient reason. The extension must be sought before lapse; after twelve months there is nothing to extend. The mischief is to prevent parties from enjoying injunctive relief while failing to prosecute their suits.
Whether the lapsed injunction could be reinstated under the court's inherent jurisdiction
Section 3A jurisdiction exists but was refused because reinstatement would evict the 2nd defendant who is now in peaceful occupation, and there was inordinate unexplained delay amounting to laches
The inherent power must be exercised judicially, weighing prejudice, delay and reasons for delay. Unlike the Rumba Kinuthia case, the 2nd defendant is now in peaceful, open and uninterrupted occupation and has fenced the land; reinstating the injunction would amount to eviction at an interlocutory stage. The plaintiffs slept on their rights for over three years.
Res judicata in respect of interlocutory applications
Granting prayer (2) of the application would contravene Section 7 of the Civil Procedure Act since the same relief was sought and granted in the Notice of Motion dated 31st May 2012
Relying on Kanorero River Farm Ltd v National Bank of Kenya Ltd, the court held that res judicata applies to applications as well as suits, whether final or interlocutory. The relief sought in the present application replicates that granted in the earlier motion of 31st May 2012, hence barred under Section 7 of the Civil Procedure Act.
Legal principles established
#- An interlocutory injunction lapses automatically if the suit is not determined within twelve months unless extended, for sufficient reason, before lapse
- The inherent jurisdiction under Section 3A to reinstate a lapsed injunction must be exercised judicially, considering prejudice, delay and reasons for delay
- The doctrine of res judicata applies to both suits and applications, whether final or interlocutory
Court orders
#- 1.The plaintiffs' Notice of Motion dated 20th November 2017 is dismissed with costs to the 2nd defendant
- 2.An order of inhibition be placed on land parcel No. KIINE/SAGANA/3721 restricting any transfer and/or charge of the said land until the suit is heard and determined or until further orders by this Court
- 3.The plaintiffs to ensure that this suit is heard and determined within the next six (6) months otherwise that order shall lapse
- Jurisdiction invoked
- Order 40 Rule 10(1)(b) and Order 50 Rule 1 of the Civil Procedure Rules; Sections 3A and 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Esther Makumbi Matundu v Mwang’a Kisyula [2018] KEELC 151 (KLR)[2018] KEELC 151 (KLR)13 Nov 2018
Cite this brief
#Cite this brief
Caselaw, "Purity Wanjiku Nderitu & another v Humprey Wang’ombe Kahariri & another [2018] KEELC 4337 (KLR)", Case Analysis (2018). Kerugoya ELC Case (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4337/eng@2018-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.