Khaoya (Personal representative of Elika Nanjala Mutuka) & another v Wekesa & 13 others (Civil Case 100 of 2010) [2022] KEELC 3844 (KLR)
The bottom line
#A Kenyan court dismissed a repeated contempt bid, confirming injunctions lapse after 12 months and suits against deceased defendants abate if no substitution is made.
What this practically means
#Executive summary
#Key legal issues
#Res judicata as applied to interlocutory applications
The Notice of Motion dated May 19, 2021, being a complete replica of the application dismissed on May 30, 2019, is res judicata and was struck out (and in the final orders, dismissed).
Section 7 of the Civil Procedure Act bars re-litigation of matters directly and substantially in issue in a former suit between the same parties. Citing Uhuru Highway Development Ltd v Central Bank of Kenya, the court held that the wider principles of res judicata apply to applications within a suit. The contempt orders sought were identical to those dismissed on May 30, 2019.
Lapse of interlocutory injunction under Order 40 Rule 6
Even if not res judicata, the contempt application would collapse because the injunction of October 2, 2013 lapsed after twelve months as the suit was not determined within that period and the injunction was not extended.
Order 40 Rule 6 provides that an interlocutory injunction lapses unless the suit is determined within twelve months, unless the court for sufficient reason orders otherwise. Following Barclays Bank of Kenya v Henry Ndungu Kinuthia and Erick Kimingichi Wapang'ana v Equity Bank Limited, the court held the wording of the order is immaterial; absent extension, the injunction lapsed.
Contempt liability of parties not in existence when orders issued
The 3rd, 4th and 5th defendants could not be punished for contempt of orders issued before they were joined to the suit.
The injunction orders of October 2, 2013 were issued when these defendants were not parties; they were only enjoined following an amended plaint filed on June 28, 2018. Contempt liability cannot attach to persons who were not bound by the order at the time it was issued.
Proof of death and abatement of suit against deceased defendant
The funeral programme was sufficient proof of the 1st defendant's death on February 27, 2020, and the suit against him abated as no application for substitution was made within one year.
Order 24 Rule 4 requires substitution of a deceased defendant; if no application is made within one year the suit abates. A Death Certificate is the best but not the only proof of death; the court admitted the funeral programme, counsel's confirmation of the death, and the uncontroverted affidavit evidence to find the death proved, and held the suit against the 1st defendant abated.
Legal principles established
#- The wider principles of res judicata apply to interlocutory applications within a suit; there must be an end to applications of a similar nature.
- An interlocutory injunction lapses after twelve months if the suit in which it was granted is not determined, unless the court for sufficient reason orders otherwise, notwithstanding the wording of the order.
- Where a defendant dies and no application for substitution is made within one year, the suit abates against the deceased defendant under Order 24 Rule 4 of the Civil Procedure Rules.
- A Death Certificate, while the best evidence of death, is not the only evidence; a court may admit other cogent evidence such as a funeral programme to prove that a party is deceased.
Court orders
#- 1.The Notice of Motion dated May 19, 2021 is dismissed
- 2.The Notice of Motion dated February 9, 2022 is allowed
- 3.The plaintiffs shall take the earliest hearing date in the registry and serve Mr Kundu
- 4.Each party to meet their own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit relating to land parcel No. East Bukusu/South Nalondo/1945
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khaoya (Personal representative of Elika Nanjala Mutuka) & another v Wekesa & 13 others (Civil Case 100 of 2010) [2022] KEELC 3844 (KLR)", Case Analysis (2022). Civil Case No 100 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3844/eng@2022-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.