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ELCDismissedNot stated in judgment· [2020] KEELC 262 (KLR)
York House Properties Limited v Mohamed Yusufali [2020] KEELC 262 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#The Environment and Land Court ruled that a Kenyan injunction extended for sufficient reason stays in force, and the defendant's delay cost him his application.
What this practically means
#Executive summary
#This was a notice of motion dated 29th November 2018 by the defendant, Mohamedali Yusufali, in a pending Environment and Land Court suit at Nairobi, seeking to vary, discharge or set aside the ex-parte injunction issued by Mutungi J on 16th January 2014 and extended by Gitumbi J on 19th May 2017, so as to permit him to repair, refurbish, maintain and commercially utilise the Zanzibar curio shop portion of York House, premises he had occupied for some forty years. The application, supported by his affidavit and supplementary affidavit and opposed by a replying affidavit of Bharat Bhardwaj, one of the directors of the plaintiff, was canvassed by written submissions. The defendant argued, relying on Order 40 rule 6 of the Civil Procedure Rules and the Barclays Bank of Kenya case, that the injunction had lapsed after twelve months and that over five and a half years had passed without the suit being heard; that continued exclusion was inequitable and oppressive, and that neglect endangered the building. The plaintiff countered that the orders were validly extended until hearing and determination, that negotiations were ongoing and the suit was fixed for hearing, that the defendant concealed material facts, and that the proper remedy was appeal against the 19th May 2017 order. Komingoi J held that Order 40 rule 6 allows extension for sufficient reason and does not require the reasons to be recorded, that the defendant should have appealed if prejudiced, and that the two-year delay before filing the application was enough time to set the suit down for hearing. The application was dismissed with costs to the plaintiff/respondent on 3rd December 2020.
Key legal issues
#01
Whether the injunction of 16th January 2014, extended on 19th May 2017, had lapsed under Order 40 rule 6 and should be discharged
Holding
The application was dismissed; the extension by Gitumbi J was for sufficient reason and the defendant failed to show the orders ought to be varied or discharged
Reasoning
Order 40 rule 6 permits extension for sufficient reason and does not require the Judge to record those reasons. The defendant waited two years after the extension before moving the court instead of appealing, even though the suit could have been set down for hearing. The court found the discretionary relief sought was not deserved.
p. 2
Legal principles established
#- Under Order 40 rule 6, an interlocutory injunction lapses after twelve months unless the court orders otherwise for sufficient reason, but the provision does not make it mandatory for the Judge to note down the reasons for extending the orders
- A party aggrieved by an extension of an interlocutory injunction should challenge it by appeal rather than by a fresh application filed years later
Court orders
#- 1.The notice of motion dated 29th November 2018 is dismissed with costs to the plaintiff/respondent
- Jurisdiction invoked
- Inherent jurisdiction and Order 40 rules 6 and 7 of the Civil Procedure Rules (application to discharge an interlocutory injunction issued in the pending suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "York House Properties Limited v Mohamed Yusufali [2020] KEELC 262 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/262/eng@2020-12-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.