Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNotice of Motion dated 19th August, 2020 (in the pending suit over L.R Nos. 7149/9 and 337/991)· [2020] KEELC 671 (KLR)

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)

Environment and Land Court
13 November 2020
4,252 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

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

#
This is a ruling of the Environment and Land Court at Machakos (O. A. Angote, J) on the Defendants' Notice of Motion dated 19th August, 2020 seeking discharge, variation or setting aside of an ex-parte injunction order issued on 20th May, 2020, pursuant to Order 40 Rule 7 of the Civil Procedure Rules. The Plaintiff's suit, filed by Plaint on 20th November, 2015, concerns L.R Nos. 7149/9 and 337/991, said to form part of the Estate of the late Peter Nzuki Ndeti under an Agreement of 24th May, 2007 with the late Kivuto Ndeti. The Plaintiff's initial injunction application dated 6th November, 2015 was dismissed for want of prosecution on 10th May, 2017, and on 15th May, 2020 the court directed the Plaintiff to fix the suit for hearing within 120 days. Instead, the Plaintiff filed an application dated 19th May, 2020 referencing a pending application dated 7th March, 2019, upon which the court granted a temporary injunction ex-parte. The Defendants argued that the injunction was obtained by non-disclosure of the earlier dismissal and an unexplained delay in service, and that the fresh application was an abuse of process, relying on Wanguhu v Kania. The Plaintiff attributed the delay to Covid-19 restrictions and invoked lis pendens. The court held that the injunction was validly issued under Section 3A of the Civil Procedure Act and Order 50 Rule 6 notwithstanding the fourteen-day limit in Order 40 Rule 4, but found the Plaintiff had concealed the dismissal of the similar 2015 application. On that ground alone the court discharged the order of 20th May, 2020 and ordered the Plaintiff to pay the costs of the application.

Key legal issues

#
01

Validity of the ex-parte injunction granted beyond fourteen days and served late

Holding

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

Reasoning

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.

p. 5
02

Discharge of the ex-parte injunction for non-disclosure

Holding

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

Reasoning

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.

p. 5
03

Proper course for a party whose application was dismissed for want of prosecution

Holding

Such a party must apply for reinstatement and explain the failure; filing a second similar application is an abuse of process

Reasoning

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.

p. 5

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. 1.The order made by the court on 20th May, 2020 be and is hereby discharged
  2. 2.The Plaintiff to pay the costs of the Application

Authorities

#

Legislation

  • Civil Procedure RulesOrder 40 Rule 1
  • Civil Procedure RulesOrder 40 Rule 4
  • Civil Procedure RulesOrder 40 Rule 7
  • Civil Procedure RulesOrder 50 Rule 6
  • Civil Procedure ActSection 3A

Cases cited (5)

  • Wanguhu versus Kania
    (1985) eKLR; Civil Appeal Number 101 of 1984
  • Atlas Copco Customer Finance AB vs. Polarize Enterprises
    [2016] eKLR
  • Filista Chemaiyo Sosten vs. Samson Mutai
    [2012] eKLR
  • Lawrance vs Lord Norreys
    (1888) 39 CH.D 221
  • Mburu Kinyua vs. Gachini Tuti
    Civil Appeal No 25 of 1977
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.