Gami Quarries Limited & another v Musa Fakir Mohamed & 3 others [2021] KEELC 3877 (KLR)
The bottom line
#A Kenyan court dismissed a land dispute application filed 11 years after a similar one, ruling that injunctions lapse after 12 months unless extended.
What this practically means
#Executive summary
#Key legal issues
#Whether the application is res judicata
Yes; the application seeks the same orders as the application dated 24th March 2009, between the same parties, determined in the ruling of 17th September 2009, and the joinder of Hilmy Hyder Salim cannot avoid the bar
The court applied Section 7 of the Civil Procedure Act and Section 28 of the Environment and Land Court Act, and the three ingredients of res judicata from John Florence Maritime Services: same issue, same parties litigating under the same title, and a competent court that determined the matter finally. The subject matter and issues in the 2009 and 2020 applications were identical, and the earlier application had been heard and determined. Adding a new defendant after eleven years could not circumvent the doctrine; the plaintiffs knew of Hilmy Hyder Salim's interest since March 2009.
Whether the injunction of 17th September 2009 lapsed by operation of law
Yes; under Order 40 Rule 6 it lapsed automatically twelve months after grant, and 'pending the hearing and determination of this suit' was not sufficient reason to keep it alive
Order 40 Rule 6 provides that an interlocutory injunction lapses where a suit is not determined within twelve months unless the court orders otherwise for sufficient reason. Following Barclays Bank of Kenya Ltd v Henry Ndungu Kinuthia, the phrase 'pending the hearing and determination of this suit' does not constitute sufficient reason to extend an injunction beyond twelve months. The plaintiffs slept on their rights for over eleven years, made no attempt to extend the injunction and did not prosecute the suit, using the orders to the defendants' prejudice.
Legal principles established
#- The res judicata doctrine applies to interlocutory applications with the same force as to final ones; a party cannot escape it by adding another defendant
- An interlocutory injunction automatically lapses twelve months after grant unless the court orders otherwise for sufficient reason; the words 'pending the hearing and determination of this suit' do not constitute sufficient reason
Court orders
#- 1.The Notice of Motion dated 23rd September, 2020 is dismissed with costs
- Jurisdiction invoked
- Sections 1A, 1B, 3A & 63 of the Civil Procedure Act and Order 40 Rules 1 & 2 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gami Quarries Limited & another v Musa Fakir Mohamed & 3 others [2021] KEELC 3877 (KLR)", Case Analysis (2021). Notice of Motion dated 23rd September, 2020 (suit concerning PLOT NO. 10947 SECTION I MN). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3877/eng@2021-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.