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ELCDismissedNotice of Motion dated 23rd September, 2020 (suit concerning PLOT NO. 10947 SECTION I MN)· [2021] KEELC 3877 (KLR)

Gami Quarries Limited & another v Musa Fakir Mohamed & 3 others [2021] KEELC 3877 (KLR)

Environment and Land Court
22 March 2021
4,552 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiffs moved the Environment and Land Court at Mombasa by Notice of Motion dated 23rd September 2020 seeking to restrain the defendants, and particularly the fourth defendant Aziza Hyder Salim together with Hilmy Hyder Salim, from continuing or pursuing a distress for rent levied on 10th September 2020 on Plot No. 10947 Section I MN, and seeking the joinder of Hilmy Hyder Salim as fifth defendant. The application was anchored on an interlocutory injunction granted by Azangalala J on 17th September 2009 restraining a similar distress. The defendants opposed, contending that the 2009 orders lapsed after twelve months by operation of Order 40 Rule 6 of the Civil Procedure Rules, that the plaintiffs are tenants or trespassers obliged to pay rent, and that arrears justified distress. The court framed three issues: res judicata, lapse of the 2009 orders, and whether the orders sought should issue. Applying Section 7 of the Civil Procedure Act, Section 28 of the Environment and Land Court Act and John Florence Maritime Services, the court held the application res judicata, the 2020 motion seeking substantially the same orders determined in 2009, and the late joinder of Hilmy Hyder Salim an afterthought. On the second issue, relying on Barclays Bank of Kenya v Kinuthia and allied authorities, the court held that the 2009 injunction lapsed automatically after twelve months, the phrase 'pending the hearing and determination of this suit' being insufficient reason to extend it, and that the plaintiffs had slept on their rights for eleven years. The motion was dismissed with costs on 22nd March 2021 (C.K. Yano J).

Key legal issues

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01

Whether the application is res judicata

Holding

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

Reasoning

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.

p. 4
02

Whether the injunction of 17th September 2009 lapsed by operation of law

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 23rd September, 2020 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63 and 7
  • Civil Procedure RulesOrder 40 Rules 1, 2, 6 and 7
  • Environment and Land Court ActSection 28

Cases cited (6)

  • Giella –v- Cassman Brown & Co. Ltd
    (1973) EA 358
  • John Florence Maritime Services Limited & Another –v- Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015) eKLR
  • Ochola Kamili Holdings Ltd –v- Guardian Bank Ltd
    (2018) eKLR
  • David Wambua Ngii –v- Abed Silas Alembi & 6 Others
    (2014) eKLR
  • Nguruman Limited –v- Jan Bonde Nielsen & 2 Others
    (2014) eKLR
  • Barclays Bank of Kenya Limited –v- Henry Ndungu Kinuthia & Another
    (2018) eKLR
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

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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, "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.