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ELCDismissed· [2021] KEELC 2145 (KLR)

Christopher Ndolo Mbuta & another v Jackson Mutua Kavila & 4 others [2021] KEELC 2145 (KLR)

Environment and Land Court
2 September 2021
2,753 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Makueni Environment and Land Court dismissed both parties' applications, ruling that a temporary injunction automatically lapses after twelve months unless the suit is decided.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Makueni (Mbogo, J) disposed of two applications. The 1st Defendant's notice of motion dated 19th June 2019, brought under Order 42 Rules 6(1) and (4) of the Civil Procedure Rules, sought a stay of proceedings pending Nairobi Court of Appeal Civil Appeal No. 160 of 2019, and a stay of the court's injunctive orders of 29th September 2017, following the dismissal on 6th December 2018 of his application to discharge the injunction. The Plaintiffs' notice of motion dated 19th February 2019 sought enforcement of the same injunctive orders through the Officer Commanding Mtito Andei Police Station, alleging that the 1st Defendant had forcibly entered the suit properties (Parcels Nos. 912, 1160, 1902 and 2916 - Mang'elete Settlement Scheme) with hired goons. The court framed two issues on the stay application: whether sufficient cause was shown for a stay of proceedings, and whether the stay of the 2017 orders was properly before it. Applying Re Global Tours & Travel Ltd, the court held stay of proceedings is a discretionary, exceptional remedy; no sufficient cause or frivolousness of the claim was demonstrated, and the delay in hearing the main suit stemmed from the parties' numerous applications. The prayer to stay the 2017 orders was barred by res judicata, being a reproduction of a prayer already dismissed. On the enforcement application, the court found the interlocutory injunction had lapsed on 29th September 2018 by operation of Order 40 Rule 6, with no evidence of extension. Both applications were dismissed with each party bearing their own costs. In exercise of inherent powers under Section 3A of the Civil Procedure Act, the court ordered open access to the suit properties for both sides with a prohibition on development, destruction or disposal, stayed all pending applications, and directed the matter to pretrial directions and priority hearing.

Key legal issues

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01

Whether stay of proceedings pending appeal should be granted

Holding

Stay of proceedings refused; no sufficient cause demonstrated

Reasoning

The court adopted Ringera J's factors in Re Global Tours & Travel Ltd: interest of justice, expeditious disposal, arguability of appeal, judicial time and expeditiousness. The applicant did not annex the memorandum of appeal, did not show the claim was frivolous or disclose no cause of action, and the delay in hearing the main suit was caused by the parties' numerous applications. No justification existed for a stay.

p. 3
02

Whether the court could stay its own orders of 29th September, 2017

Holding

The prayer was res judicata, being a reproduction of a prayer dismissed in the Ruling of 6th December, 2018 which is the subject of a pending appeal

Reasoning

The third prayer merely reproduced the second prayer of the application dated 22nd November, 2017, which the court had fully heard and dismissed. Re-litigating it would produce inconsistent findings and encroach on the pending appeal; the doctrine of res judicata barred it.

p. 3
03

Whether the injunctive orders of 29th September, 2017 remained enforceable with police assistance

Holding

The injunction had lapsed under Order 40 Rule 6 twelve months after grant, with no evidence of extension, so the enforcement application failed

Reasoning

Order 40 Rule 6 provides that an interlocutory injunction lapses if the suit is not determined within twelve months unless the court orders otherwise for sufficient reason. The order issued on 29th September 2017 lapsed on 29th September 2018, and the record contained no evidence that it was extended on either party's application.

p. 4

Legal principles established

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  • Stay of proceedings is a discretionary power to be exercised judiciously, sparingly and only in exceptional circumstances, weighing the interest of justice
  • An interlocutory injunction lapses where the suit is not determined within twelve months of the grant unless the court orders otherwise for sufficient reason
  • A court cannot revisit an issue it has already determined on its merits; the doctrine of res judicata bars inconsistent findings within the same proceedings

Court orders

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  1. 1.An Order of open access to the suit properties issued to both the Plaintiffs and the 1st Defendant provided that neither party shall develop, destroy, demolish any structure and/or otherwise dispose of any part of the suit properties until the matter is fully heard and determined
  2. 2.All pending applications are stayed
  3. 3.Matter to proceed for pretrial directions and a hearing date to be issued on priority basis
  4. 4.Both applications dismissed with each party bearing their own costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rules 6(1) and (4)
  • Civil Procedure Rules, 2010Order 40 Rule 6
  • Civil Procedure ActSections 1A, 1B and 3A
  • National Police Service ActSection 24

Cases cited (8)

  • Ougo & another -Vs- Otieno
    [1987] KLR 1
  • Savings and Loan Kenya Ltd -Vs- Odongo
    [1987] KLR 294
  • Mugah -Vs- Kaunga
    [1988] KLR 748
  • Regnoil Kenya Limited -Vs- Winfred Njeri Karanja
    [2019] eKLR
  • Manchar Singh Sagoo & another -Vs- Caroline Njeri Mwicigi & 3 others
    [2018] eKLR
  • Re Global Tours & Travel Ltd HCWC No. 43 of 2000
  • Namu Wachira & 2 others -Vs- Njeru Wachira
    [2015] eKLR
  • Claire Adamba Okanga -Vs- Godfrey Gichuki Waiharo
    Civil Appeal No. 69 of 2012 (at Nairobi)
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rules 6(1) and (4) and Order 40 Rule 6 of the Civil Procedure Rules, 2010

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, "Christopher Ndolo Mbuta & another v Jackson Mutua Kavila & 4 others [2021] KEELC 2145 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2145/eng@2021-09-02

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