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ELCDismissedCivil Case No 100 of 2010· [2019] KEELC 3220 (KLR)

John Wekesa Khaoya & another v Paul Juma Wekesa & 13 others [2019] KEELC 3220 (KLR)

Environment and Land Court (High Court as constituted; judge ruling in civil suit)
30 May 2019
798 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an injunction automatically expires after 12 months unless extended, so it cannot be used to punish anyone for contempt.

What this practically means

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Executive summary

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This is a ruling by Boaz N. Olao, Judge, delivered on 30th May 2019 in a long-running land suit filed on 11th October 2010 concerning parcel E.BUKUSU/S.NALONDO 1945. The plaintiffs, through a Notice of Motion dated 5th October 2018 supported by the affidavit of the 1st plaintiff, John Wekesa Khaoya, sought to have the defendants cited for contempt of a temporary injunction issued by Omollo J on 2nd October 2013, restraining the defendants from tilling, dealing in, transferring or working on parcels E.BUKUSU/S.NALONDO/2725 and 2727. The motion was unopposed, but the court nonetheless delivered a ruling. The court examined Order 40 Rule 6 of the Civil Procedure Rules, under which an interlocutory injunction lapses if the suit is not determined within twelve months unless the court orders otherwise. The suit had not been heard within that period, despite Omollo J fixing hearing for 10th February 2014, Mukunya J's order of 20th July 2015 directing parties to abandon pending applications and fix the suit for hearing, and a warning by Deputy Registrar E. N. Mwenda on 21st February 2018. Relying on its earlier decision in Simon Njagi Njoka v Gatimu Muriithi & 5 Others (2017 eKLR), the court held that a lapsed order ceases to have force of law; the injunction expired on 2nd October 2014 and was never extended. Contempt could not be founded on a lapsed order, and doing so would abuse the court process. The motion was dismissed with no orders as to costs, and the plaintiffs were directed to take the earliest hearing dates, with hearing set for 4th November 2019.

Key legal issues

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01

Whether the injunction of 2nd October 2013 remained in force when the contempt application was made on 5th October 2018

Holding

The injunction lapsed automatically on 2nd October 2014, twelve months after grant, because the suit was not determined within that period and the order was never extended

Reasoning

Order 40 Rule 6 CPR provides that an interlocutory injunction lapses if the suit is not determined within twelve months unless the court orders otherwise. Omollo J had even fixed the suit for hearing on 10th February 2014 and Mukunya J directed parties to withdraw pending applications and fix the suit for hearing. There was no evidence of extension of the injunction. Citing Simon Njagi Njoka v Gatimu Muriithi, a lapsed order ceases to have force of law.

p. 2
02

Whether defendants could be cited for contempt of a lapsed order

Holding

No; contempt cannot be founded on an order that has lapsed and has no force of law

Reasoning

The term 'lapse' as defined in Black's Law Dictionary means termination of a right or privilege for failure to exercise it within a time limit. Since the injunction expired by operation of Order 40 Rule 6, continued dealing with the land could not constitute disobedience of a subsisting court order, and purporting to cite the defendants would abuse the court process.

p. 2

Legal principles established

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  • Under Order 40 Rule 6 of the Civil Procedure Rules, an interlocutory injunction lapses if the suit is not determined within twelve months unless the court orders otherwise for sufficient reason
  • Once an order has lapsed, it ceases to have any force of law and cannot sustain contempt proceedings

Court orders

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  1. 1.The plaintiffs' Notice of Motion dated 5th October 2018 is dismissed
  2. 2.No orders as to costs
  3. 3.Plaintiffs directed to take the earliest dates in the registry for the hearing of the suit
  4. 4.Hearing set for 4th November 2019 with hearing notice to issue

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 6

Cases cited (1)

  • SIMON NJAGI NJOKA .V. GATIMU MURIITHI & 5 OTHERS
    2017 eKLR
Jurisdiction invoked
Original civil jurisdiction over land dispute; contempt application under Order 40 Rule 6 of the Civil Procedure Rules context

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, "John Wekesa Khaoya & another v Paul Juma Wekesa & 13 others [2019] KEELC 3220 (KLR)", Case Analysis (2019). Civil Case No 100 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3220/eng@2019-05-30

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