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ELCPartially Allowed· [2019] KEELC 4675 (KLR)

Joseph Muturia v Saifat Enterprises Limited & 3 others [2019] KEELC 4675 (KLR)

Environment and Land Court
13 February 2019
1,032 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This Environment and Land Court ruling at Meru, delivered by Lucy N. Mbugua, ELC Judge, on 13 February 2019, determined a notice of motion dated 2.11.2017 by the 4th defendant seeking dismissal of the suit for want of prosecution and, alternatively, vacation of exparte interim orders of injunction and inhibition granted on 27.2.2013, with an undertaking as to damages in terms of mesne profits. The court reviewed the record and found that the plaintiff had obtained exparte orders on 27.2.2013 in the application dated 25.2.2013 but repeatedly failed to comply with directions to file submissions, doing so only on 1.4.2016, nearly two years after the last order of 16.7.2014, and the interim orders were never extended beyond that date. The court disregarded the late submissions, dismissed the 2013 application with costs to the 4th defendant, and discharged the interim orders. On dismissal of the entire suit, the court declined to dismiss it outright, instead granting the plaintiff a final chance to prosecute the suit on condition that no adjournment would be allowed at his instance. Regarding the 2nd defendant, who died before judgment and whose death the plaintiff learnt of in October 2017, the court marked the suit as abated against him under Order 24 rule 4(1) and (3) given the absence of substitution steps. The application dated 2.11.2017 was accordingly allowed in those terms.

Key legal issues

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01

Whether the exparte interim orders of injunction and inhibition of 27.2.2013 should be discharged

Holding

The orders lapsed for want of extension and the underlying application was dismissed for the plaintiff's indolence

Reasoning

The plaintiff obtained exparte orders on 27.2.2013 but repeatedly failed to comply with directions to file submissions in 2013 and 2014. The interim orders were not extended after 16.7.2014, and submissions were filed almost two years after the last order. The 2013 application had remained lifeless for about five years, justifying dismissal of the application and discharge of the interim orders.

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02

Whether the suit should be dismissed for want of prosecution

Holding

The suit was not dismissed outright but allowed to proceed on strict conditions

Reasoning

The plaintiff failed to demonstrate vigilance, and the matter appears to have been listed before Judge Mabeya through the court's own initiative on dormant matters. Nonetheless the court exercised discretion to give the plaintiff one final chance, on condition that no adjournment would be granted at his instance on the hearing date.

03

Whether the suit against the 2nd defendant abated following his death

Holding

The suit abated against the 2nd defendant under Order 24 rule 4(1) and (3)

Reasoning

The plaintiff learnt of the 2nd defendant's death in October 2017 but took no effective steps to substitute the deceased's legal representative even a year later. Under Order 24 rule 4(1) and (3) the suit is accordingly marked as abated against the 2nd defendant.

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Legal principles established

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  • Interim orders of injunction lapse and cannot survive indefinitely where they were never extended and the litigant is indolent.
  • Submissions filed outside the period ordered by the court are not properly on record.
  • A suit against a deceased defendant abates where no substitution is sought within the statutory period under Order 24 rule 4.

Court orders

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  1. 1.The application dated 25.2.2013 is dismissed with costs to the 4th defendant
  2. 2.The interim orders issued on 27.2.2013 and extended thereafter are discharged
  3. 3.The suit against the 2nd defendant is marked as abated
  4. 4.The matter is to be listed down for hearing and shall not be adjourned at the instance of the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 rule 4(1) and (3)
Jurisdiction invoked
Not expressly stated; Environment and Land Court jurisdiction and Civil Procedure Rules Order 24 rule 4(1) and (3)

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, "Joseph Muturia v Saifat Enterprises Limited & 3 others [2019] KEELC 4675 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4675/eng@2019-02-13

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