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ELCDismissedNot stated in judgment· [2022] KEELC 2091 (KLR)

Paul Omalla v Gabriel Ochong Oriwo & another [2022] KEELC 2091 (KLR)

Environment and Land Court
20 January 2022
AKA. Y. Koross
1,315 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a contempt case because the injunction had automatically expired after 12 months and was never extended.

What this practically means

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Executive summary

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The plaintiff filed a Notice of Motion dated 4/11/2021 under Section 63(c) of the Civil Procedure Act and Order 40 Rule 3 of the Civil Procedure Rules seeking a declaration that the 1st defendant was in contempt of injunctive orders issued on 27/06/2019, committal to civil jail, and attachment of the 1st defendant's properties. The 1st defendant opposed the motion through a replying affidavit and written submissions, contending that he had not disobeyed any orders, that contempt proceedings are quasi-criminal requiring a high standard of proof, and that the application was frivolous and an abuse of process. The 2nd defendant never participated in the proceedings. The court framed the sole issue as whether the motion was merited. Relying on Order 40 rule 6 of the Civil Procedure Rules and the Court of Appeal decisions in Nguruman Limited v Jan Bonde Nielsen and Barclays Bank of Kenya Limited v Henry Ndungu Kinuthia, the court held that interlocutory injunctions lapse automatically 12 months after grant unless extended for sufficient reason. The orders of 27/06/2019 lapsed around 28/06/2020, and the plaintiff had never sought their extension; accordingly there were no subsisting orders capable of being disobeyed. The court found the motion frivolous, incompetent and an abuse of process, dismissed it, directed compliance with earlier case-management directions within 30 days, and awarded costs of the motion to the plaintiff.

Key legal issues

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01

Whether contempt proceedings could be founded on injunction orders issued on 27/06/2019

Holding

The orders lapsed automatically 12 months after issuance and could not sustain a contempt application; the plaintiff never sought their extension.

Reasoning

Order 40 rule 6 of the Civil Procedure Rules provides that interlocutory injunctions lapse after 12 months unless extended for sufficient reason. The orders issued on 27/06/2019 lapsed around 28/06/2020. The plaintiff never moved the court to extend them, so by the time the motion was filed on 4/11/2021 there were no subsisting orders capable of being disobeyed, and the contempt application failed.

p. 2

Legal principles established

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  • Interlocutory injunctions lapse automatically 12 months after grant unless the court, for sufficient reason, extends them at the opportune time; no contempt lies for disobedience of a lapsed order.

Court orders

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  1. 1.The Notice of Motion dated 4/11/2021 is hereby dismissed
  2. 2.Parties to comply with the directions issued by the court on 6/10/2021 within 30 days
  3. 3.Parties to put in comprehensive witness statements and indexed and paginated bundle of documents within 30 days
  4. 4.Matter to be mentioned before the Deputy Registrar to confirm compliance and further directions on 23/02/2022
  5. 5.Costs of the Notice of Motion to be borne by the plaintiff

Authorities

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Legislation

  • Civil Procedure ActSection 63(a) and (c)
  • Civil Procedure RulesOrder 40 Rule 3(1)(2) and (3)
  • Civil Procedure RulesOrder 40 rule 6
  • Environment and Land Court ActSection 29

Cases cited (7)

  • Kiru Tea Factory Company Limited vs Stephen Maina Githinga & 14 others
  • Kristen Carla Burchell vs Barry Grant Burchell
    Eastern Cape Division case number 364 of 2005
  • Shimmers Plaza Limited vs National Bank of Kenya Limited
    [2015] eKLR
  • Gatharia K Mutikika vs Baharini Farm Limited
    [1985] KLR
  • Republic vs Justus Kizito Musali ex parte Honourable Silvester Lesamula Anami
    Miscellaneous Number 3 of 2017
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    2014 eKLR
  • Barclays Bank of Kenya Limited v Henry Ndungu Kinuthia & another
    [2018] eKLR
Jurisdiction invoked
Section 29 of the Environment and Land Court Act; Section 63(a) and (c) of the Civil Procedure Act and Order 40 Rule 3(1) 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, "Paul Omalla v Gabriel Ochong Oriwo & another [2022] KEELC 2091 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2091/eng@2022-01-20

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