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ELCPartially AllowedNot stated in the judgment excerpt· [2022] KEELC 3395 (KLR)

Mungai & another v Allied Group for Business Investment Limited & 3 others (Environment & Land Case 981 of 2015) [2022] KEELC 3395 (KLR)

Environment and Land Court
26 May 2022
4,378 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan land court struck out a carelessly filed application and let an old injunction lapse, showing that strict procedure can defeat even sympathetic litigants.

What this practically means

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Executive summary

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This Environment and Land Court ruling by OA Angote J, delivered virtually in Nairobi on May 26, 2022, determined two competing applications: the 1st defendant's notice of motion dated August 3, 2021 seeking dismissal of the suit (as abated and for want of prosecution), discharge of interim injunctive orders, vacant possession and deposit of the balance purchase price; and the plaintiff's notice of motion dated November 16, 2021 (later amended on February 11, 2022) seeking revival of the 1st plaintiff's abated suit and substitution of the applicant as legal representative of the deceased 1st plaintiff's estate. The court struck out and expunged the amended application because it was filed without leave, the failure being deliberate and tactical, holding that article 159(2)(d) does not override laid down procedures. It held the 1st plaintiff's suit had abated and could not be revived or the applicant substituted because extension of time under Order 24 rule 3(2) had not first been sought and granted, and no sufficient cause for the delay was shown. It refused dismissal for want of prosecution, the delay being attributable to the plaintiffs' illnesses, deaths and the pandemic. The interim injunction of October 21, 2015 was deemed to have lapsed by operation of law under Order 40 rule 6, never having been extended within twelve months. Vacant possession was refused as it would determine the parties' disputed rights over the suit property without a trial, the 2nd plaintiff's suit (where substitution was duly effected) still subsisting. Each party was ordered to bear the costs of their respective applications.

Key legal issues

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01

Competence of an amended notice of motion filed without leave of court

Holding

The amended application was incompetent and was struck out and expunged because leave to amend was deliberately not sought

Reasoning

Order 8 rule 5 permits amendment to determine the real question in controversy. The Court of Appeal authorities hold that where leave is required, a pleading filed without leave is a nullity. The explanation by the plaintiffs' counsel showed the failure to seek leave was deliberate and tactical to save time in a court with a backlog. Article 159(2)(d) does not override laid down procedures nor aid litigants who deliberately flout them.

p. 4
02

Whether the 1st plaintiff's suit abated and whether it could be revived and the legal representative substituted

Holding

The suit by the 1st plaintiff abated; substitution and revival could not be granted because extension of time had not first been sought and granted, and no sufficient cause was shown

Reasoning

Order 24 rules 1, 2, 3 and 7 set out a sequence: application for joinder of the legal representative within one year, failing which the suit abates; revival requires sufficient cause. Following Rebecca Mijide Mungole, time must first be extended before joinder and revival can be sought. No reason was proffered for failure to substitute within the court-mandated or statutory timelines, leaving no basis to exercise the discretion to extend time.

p. 7
03

Whether the suit abated as against the 2nd plaintiff

Holding

The suit by the 2nd plaintiff did not abate because substitution was duly applied for and allowed

Reasoning

The 2nd plaintiff died on January 7, 2016, substitution was sought on May 31, 2016 and allowed on May 8, 2017, within the contemplation of Order 24 rule 2. The suit therefore remains valid and proceeds as against the defendants on the 2nd plaintiff's claim.

p. 7
04

Whether the interim injunction of October 21, 2015 should be discharged

Holding

The interim injunction lapsed by operation of law under Order 40 rule 6 after twelve months

Reasoning

The injunction was granted on October 21, 2015 and was never extended or set down for hearing within one year. Order 40 rule 6 is couched in mandatory terms and the words 'pending the hearing and determination' do not constitute sufficient reason to keep an interlocutory injunction alive beyond twelve months.

p. 8
05

Dismissal of the suit for want of prosecution

Holding

Dismissal for want of prosecution was refused because the delay was attributable to the illness and deaths of the plaintiffs and the pandemic, not to any inertness

Reasoning

Order 17 rule 2 allows dismissal where no step is taken for a year, but the matter was fixed for hearing on March 24, 2021 for September 30, 2021 and the earlier adjournments were occasioned by the plaintiffs' illnesses and deaths and by the scale-down of court activities during the corona pandemic. Such factors beyond the plaintiffs' control cannot found dismissal.

p. 7
06

Vacant possession and deposit of the balance of the purchase price

Holding

Refused as it would amount to determination of the parties' rights over the disputed property without a trial

Reasoning

The dispute concerns ownership of the suit property and the sale relied on by the 1st defendant is disputed. Since the 2nd plaintiff's suit still subsists, granting vacant possession would be a final determination of the parties' rights in an interlocutory application.

p. 8

Legal principles established

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  • Where a suit has abated, an application for extension of time must be granted before the legal representative can apply for joinder or revival; it is incompetent to seek joinder or revival before extension of time
  • Article 159(2)(d) does not override procedural imperatives or aid litigants who deliberately flout procedures
  • An interlocutory injunction lapses automatically after 12 months under Order 40 rule 6 unless the court gives sufficient reason for extension

Court orders

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  1. 1.The amended notice of motion application dated February 11, 2022 is incompetent and is hereby expunged from the record
  2. 2.The suit by the 1st plaintiff be and is hereby marked as having abated
  3. 3.The interim injunctive order issued on October 21, 2015 is deemed to have lapsed by operation of law
  4. 4.The application dated November 16, 2021 is unmerited and is hereby dismissed
  5. 5.Each party shall bear the costs of their respective applications

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 8 rule 5
  • Civil Procedure RulesOrder 24 rules 1, 2, 3 and 7
  • Civil Procedure RulesOrder 17 rule 2(1) and (3)
  • Civil Procedure RulesOrder 40 rules 1, 6 and 7

Cases cited (6)

  • Nathan Chesang Moson & 2 others v Community Uplift Ministries
    [2013] eKLR
  • Kiru Tea Factory Company Ltd v Stephen Maina Githiga & 13 others
    [2019] eKLR
  • Raila Odinga v IEBC & others
    [2013] eKLR
  • Said Sweilem Gheithan Saannum v Commissioner of Lands & 5 others
    [2015] eKLR
  • Rebecca Mijide Mungole & another v Kenya Power & Lighting Company Ltd & 2 others
  • Barclays Bank of Kenya Limited v Henry Ndungu Kinuthia & another
    [2018] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the dispute concerning ownership of the suit property

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, "Mungai & another v Allied Group for Business Investment Limited & 3 others (Environment & Land Case 981 of 2015) [2022] KEELC 3395 (KLR)", Case Analysis (2022). Not stated in the judgment excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3395/eng@2022-05-26

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