Prudential Capital Limited v Nairobi City County & 2 others others [2019] KEELC 197 (KLR)
The bottom line
#A Kenyan court threw out a contempt claim because the winner never served the court order within three days, so it automatically expired.
What this practically means
#Executive summary
#Key legal issues
#Whether the orders of 27th November 2018 were ex parte and whether they lapsed
They were ex parte and lapsed for want of service within three days
The record showed only the plaintiff's counsel present and no responses filed; the orders were granted on one side only. No affidavit of service proved service within three days; the only verifiable date of service was 23rd January 2019. Under Order 40 rule 4(3) the injunction therefore automatically lapsed.
Whether the discharge application (24th January 2019) was merited
Allowed; orders discharged and set aside
The court found merit not only in the lapse of the orders but also in material non-disclosure: the plaintiff exhibited a certificate of lease beginning at transaction No. 7, omitting earlier transactions, and evidence suggested the suit property was public land earmarked for a health centre. The plaintiff could not rely on the certificate of lease alone.
Whether contempt was established
Not established
The orders having lapsed, they could not found contempt; in any event service and the contemnors' culpability were not proved. The plaintiff's own affidavit suggested the alleged contemnors were not the ones who committed the acts complained of.
Legal principles established
#- An ex parte injunction must be served within three days of issue, failing which it automatically lapses under Order 40 rule 4(3)
- A lapsed order cannot found contempt proceedings
- An ex parte order is one made for the benefit of one party without notice to the other
Court orders
#- 1.The orders issued on 27th November 2018 are discharged and/or set aside
- 2.The OCPD Buru Buru police station is directed to ensure that order is preserved on the suit property being Nairobi/Block 107/383 pending the hearing and determination of the suit
- 3.Costs to abide the outcome of the main suit
- 4.The notice of motion dated 14th March 2019 (contempt application) is dismissed with costs to the respondents
- Jurisdiction invoked
- Original civil jurisdiction over land disputes and contempt, under the Environment and Land Court Act, 2011 and Civil Procedure Act and Rules (Order 40; Section 29 Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Prudential Capital Limited v Nairobi City County & 2 others others [2019] KEELC 197 (KLR)", Case Analysis (2019). Not stated in the extract (ELC suit, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/197/eng@2019-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.