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ELCDismissedNot stated in the judgment· [2019] KEELC 2530 (KLR)

Benjamin Barasa Wafula v Attorney General & 14 others [2019] KEELC 2530 (KLR)

Environment and Land Court
11 July 2019
BOBoaz N. Olao
1,068 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Bungoma court dismissed a landowner's attempt to revive expired injunction orders, confirming they automatically lapse after twelve months if a suit isn't decided.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Bungoma (Olao J) delivered on 11th July 2019 on a Notice of Motion dated 23rd November 2018 in which the plaintiff, acting in person, sought review of a ruling delivered on 22nd November 2018 dismissing his application to punish the defendants for contempt of injunctive orders issued by Mukunya J on 7th March 2017. The court had found that the interlocutory injunction orders had lapsed because the suit, filed on 22nd June 2016, had not been determined within twelve months of the orders being issued. The 2nd, 3rd, 6th and 9th defendants opposed the review through grounds of opposition, describing the application as incompetent, defective, an abuse of court, and in substance an appeal disguised as a review. The application was canvassed by consent on the pleadings. The court agreed that the application was really an appeal against its own ruling disguised as a review, and held in any event that no error apparent on the face of the record existed: applying the Court of Appeal decision in Erick Kimingichi Wapangana v Equity Bank Ltd (2015 eKLR), the injunction lapsed if the suit was not determined within twelve months, and the orders had never been extended. The motion was dismissed with costs to the 2nd, 3rd, 6th and 9th defendants, and the parties were directed to comply with pre-trial directions and prepare the suit for hearing. In a further order, the judge recused himself from the case at the request of the 7th defendant, Ali Waziri Bakari, and transferred the suit to Hon. Omollo J, Presiding Judge of the Environment and Land Court at Busia, for mention on 24th September 2019.

Key legal issues

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01

Whether the application for review was competent

Holding

The application was incompetent, being a disguised appeal against the court's own ruling of 22nd November 2018

Reasoning

The court found that the plaintiff's real grievance was the finding that the injunction orders had lapsed. A party aggrieved by such a finding should appeal rather than seek review. The grounds of opposition describing the application as an appeal disguised as review were accepted. The application was also described as convoluted, with 19 prayers the court found difficult to comprehend.

p. 2
02

Whether there was an error apparent on the face of the record

Holding

No error apparent on the face of the record existed because the injunction of 7th March 2017 had lapsed by 3rd July 2018 under the twelve-month rule

Reasoning

Relying on the Court of Appeal decision in Erick Kimingichi Wapangana v Equity Bank Ltd, interlocutory injunctions lapse if the suit is not determined within twelve months. The orders were issued on 7th March 2017, were never extended, and the suit filed on 22nd June 2016 remained undetermined by 3rd July 2018. The finding that the orders had lapsed was therefore arithmetically correct.

p. 2

Legal principles established

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  • An interlocutory injunction lapses if the suit in which it is made is not determined within twelve months
  • Dissatisfaction with a ruling cannot be dressed up as an application for review; the proper remedy is an appeal

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 23rd November 2018 is dismissed with costs to the 2nd, 3rd, 6th and 9th defendants
  2. 2.The parties are directed to comply with pre-trial directions and have the suit ready for hearing as soon as possible
  3. 3.Judge Boaz N. Olao recuses himself from handling the case at the instance of the 7th defendant Ali Waziri Bakari
  4. 4.The case is transferred to Hon. Omollo J, Presiding Judge, Environment and Land Court, Busia, for mention on 24th September 2019 for further orders as to hearing
  5. 5.Mention notices to issue to the other parties

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rules 1, 2 and 3
  • Civil Procedure RulesOrder 45 Rule 1

Cases cited (1)

  • ERICK KIMINGICHI WAPANGANA & ANOTHER .V. EQUITY BANK LTD & ANOTHER
    2015 eKLR
Jurisdiction invoked
Order 45 Rules 1, 2 and 3 of the Civil Procedure Rules (review jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Benjamin Barasa Wafula v Attorney General & 14 others [2019] KEELC 2530 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2530/eng@2019-07-11

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