Raphael Musyoki Ndeti (Suing as the personal representative of the Estate of Peter Nzoki Ndeti (Deceased) v Cecilia Situmai Ndeti (Sued as the personal representative of the Estate of Kivuto Ndeti (Deceased) & another [2020] KEELC 671 (KLR)
The bottom line
#A Kenyan land court cancelled an emergency injunction because the plaintiff hid that an identical earlier application had been dismissed.
What this practically means
#Executive summary
#Key legal issues
#Validity of the ex-parte injunction granted beyond fourteen days and served late
The court validly granted the injunction pending the hearing inter partes, invoking its inherent powers and power to enlarge time, given the Covid-19 pandemic and scaled-down court operations
Order 40 Rule 4 limits ex-parte injunctions to fourteen days and requires service within three days, failing which the injunction lapses. However, the court held that Section 3A of the Civil Procedure Act and Order 50 Rule 6 empowered it to grant the order pending the inter partes hearing, because the Covid-19 pandemic and cessation of movement between Nairobi and Machakos disrupted registry operations and the extraction and service of the order. The order was therefore held validly issued.
Discharge of the ex-parte injunction for non-disclosure
The Plaintiff did not disclose that the court had dismissed a similar earlier application for want of prosecution; the injunction was obtained by concealment of material facts and is discharged
The Plaintiff's 2015 injunction application was dismissed for want of prosecution on 10th May, 2017. Instead of seeking reinstatement, the Plaintiff filed a similar application on 7th March, 2019, and the application and certificate of urgency of 19th May, 2020 did not disclose the earlier dismissal. Applying Atlas Copco and Filista Chemaiyo, and Wanguhu v Kania on abuse of process, the court found the concealment material and, on that ground alone, allowed the Defendants' application and discharged the order.
Proper course for a party whose application was dismissed for want of prosecution
Such a party must apply for reinstatement and explain the failure; filing a second similar application is an abuse of process
Relying on Wanguhu v Kania (Platt Ag JA), the court held that a party who fails to prosecute an application cannot simply bring a second application; there would be no end to litigation. The party must explain the failure to appear and seek reinstatement. The Plaintiff should have sought reinstatement of the dismissed 2015 application rather than filing the similar 7th March, 2019 application, which formed the basis of the ex-parte order.
Legal principles established
#- An ex-parte injunction obtained by concealment of material facts may be discharged under Order 40 Rule 7
- A party whose application is dismissed for want of prosecution must seek reinstatement and explain the failure, not file a fresh similar application
Court orders
#- 1.The order made by the court on 20th May, 2020 be and is hereby discharged
- 2.The Plaintiff to pay the costs of the Application
- Jurisdiction invoked
- Order 40 Rule 7 of the Civil Procedure Rules; Section 3A of the Civil Procedure Act; Order 50 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Raphael Musyoki Ndeti (Suing as the personal representative of the Estate of Peter Nzoki Ndeti (Deceased) v Cecilia Situmai Ndeti (Sued as the personal representative of the Estate of Kivuto Ndeti (Deceased) & another [2020] KEELC 671 (KLR)", Case Analysis (2020). Notice of Motion dated 19th August, 2020 (in the pending suit over L.R Nos. 7149/9 and 337/991). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/671/eng@2020-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.