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ELCDismissedCivil Case 256 of 2019· [2023] KEELC 21476 (KLR)

Waiguru v Kihingo Village (Waridi Gardens) Limited; Kabiro & another (Interested Parties)

Environment and Land Court
9 November 2023
5,882 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that court injunctions automatically expire after 12 months unless extended, and interested parties cannot seek to strike out lawsuits.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (Angote, J) determined the 1st Interested Party's Notice of Motion dated 17th November 2022 seeking striking out of the Plaintiff's plaint, alternatively an order for security for costs of KShs. 10,000,000, on the ground that the suit arose from an illegal sale of House No. 1D executed during the subsistence of injunction orders issued in HCCC No. 355 of 2012. The Plaintiff opposed through a preliminary objection and replying affidavit, contending that the injunction orders had lapsed by operation of law under Order 40 Rule 6 of the Civil Procedure Rules, that the application was brought in bad faith, and that she had invested over KShs. 40,687,170 in the property. The 2nd Interested Party (a director) supported the Plaintiff, alleging forgery and family disputes. The court framed three issues: lapse of the injunction, security for costs, and striking out. It held that Order 40 Rule 6 is mandatory and the injunction had lapsed after twelve months, well before the 25th September 2015 Agreement, so the suit could not be struck out for illegality. On security for costs, the court held that the applicant bore the burden of proving the Plaintiff's inability to pay, and mere allegations of poverty or lack of assets were insufficient. Further, relying on Supreme Court authority, the court held that an Interested Party is legally incapable of filing substantive applications such as striking out a plaint or seeking security for costs. The preliminary objection was allowed with costs and the application dismissed with costs.

Key legal issues

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01

Lapse of injunction under Order 40 Rule 6

Holding

The injunction issued in June 2012 and affirmed on 5th December 2013 lapsed automatically by operation of law after twelve months, well before the 25th September 2015 Agreement.

Reasoning

Order 40 Rule 6 is mandatory: an interlocutory injunction lapses if the suit is not determined within twelve months unless the court orders otherwise for sufficient reason. No extension was sought. Even computing from the affirmation date, the orders had been in existence about 21 months when the Agreement was executed, so the sale was not during a valid subsisting order.

p. 6
02

Security for costs

Holding

Refused; the 1st Interested Party and Defendant produced no tangible evidence of the Plaintiff's inability to pay costs, and poverty or perceived lack of assets is no ground for security.

Reasoning

The discretion must be exercised judiciously, balancing access to justice against protecting the defendant. The applicant bears the burden of proving inability to pay; the Defendant's attempt to shift this burden to the Plaintiff was self-defeating under Section 107 of the Evidence Act.

03

Capacity of an Interested Party to apply to strike out a plaint

Holding

An Interested Party cannot file substantive applications such as striking out the Plaint or seeking security for costs; the preliminary objection was merited.

Reasoning

Relying on binding Supreme Court authority (Mumo Matemu, Muruatetu, Methodist Church), the court held that an Interested Party's participation is limited; issues remain those of the principal parties. Having chosen joinder as Interested Party rather than as plaintiff or defendant, the 1st Interested Party could not seek substantive orders.

p. 10

Legal principles established

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  • An interlocutory injunction lapses automatically after twelve months unless the court orders otherwise for sufficient reason.
  • An Interested Party is legally incapable of filing substantive applications such as striking out a plaint or seeking security for costs.
  • An applicant for security for costs must prove the opposing party's inability to pay; mere allegation is insufficient.

Court orders

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  1. 1.The Plaintiff's Preliminary Objection dated 21st November, 2022 is allowed with costs.
  2. 2.The 1st Interested Party's application dated 17th November, 2022 is dismissed with costs.

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 6
  • Civil Procedure RulesOrder 40 Rule 7
  • Civil Procedure RulesOrder 26
  • Constitution of KenyaArticle 159
  • Evidence ActSection 107
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2012 (Mutunga Rules)Definition of Interested Party

Cases cited (13)

  • Charles Mwangi vs Dhraj Popat
    (2005) eKLR

    No court ought to enforce an illegal contract; illegality need not be pleaded.

  • Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd
    1969 EA 696

    Definition and principles of a preliminary objection - a pure point of law.

  • Aviation & Allied Workers Union Kenya vs Kenya Airways Limited & 3 Others
    [2015] eKLR

    Approval of Mukisa Biscuits principles on preliminary objections.

  • Barclays Bank of Kenya Limited vs Henry Ndungu Kinuthia & Another
    [2018] eKLR

    Order 40 Rule 6 is mandatory; injunction lapses after 12 months unless court orders otherwise.

  • Erick Kimingichi Wapang'ana & Another vs Equity Bank Limited & Another
    Civil Appeal No. 23 of 2015 [2015] eKLR

    Interlocutory injunction lapses after twelve months absent an extension order.

  • Johnson Muthama vs Minister of Justice and Constitutional Affairs and Others
    Nairobi Petition No. 198 of 2011

    Justification for security for costs in civil proceedings.

  • Patrick Ngeta Kimanzi vs Marcus Mutua Muluvi & 2 Others
    High Court Election Petition No. 8 of 2013

    Security for costs balances access to justice against protection of respondent.

  • Gatirau Peter Munya vs Dickson Mwenda Githinji & 2 Others
    CA No. 38 of 2013 [2014] eKLR

    Applicant for security for costs must prove respondent's inability to pay.

  • Joel K. Kibiwott & 4 Others vs Registered Trustees of The Monastry Our Lady of Victory
    [2009] eKLR

    Applicant for security of costs must prove inability of opposing party to pay costs.

  • Umar Chibachi Omurunga vs Wildfire Flowers Limited
    [2010] eKLR

    Poverty or insolvency is no ground for demanding security for costs.

  • Trusted Society of Human Rights Alliance vs Mumo Matemu & 5 Others
    Petition No. 12 of 2013 (2014) eKLR

    An interested party cannot seek to strike out a suit on grounds of defective pleadings.

  • Francis Karioki Muruatetu & Another vs Republic & 5 Others
    Petition No. 15 of 2015 as Consolidated with Petition No. 16 of 2015 [2016] eKLR

    Limits of an interested party's participation; cannot frame fresh issues.

  • Methodist Church in Kenya vs Mohammed Fugicha & 3 others
    [2019] eKLR

    Issues remain those presented by principal parties; interested party may not introduce new issues.

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property dispute

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, "Waiguru v Kihingo Village (Waridi Gardens) Limited; Kabiro & another (Interested Parties)", Case Analysis (2023). Civil Case 256 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21476/eng@2023-11-09

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