Waiguru v Kihingo Village (Waridi Gardens) Limited; Kabiro & another (Interested Parties)
The bottom line
#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
#Executive summary
#Key legal issues
#Lapse of injunction under Order 40 Rule 6
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.
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.
Security for costs
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.
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.
Capacity of an Interested Party to apply to strike out a plaint
An Interested Party cannot file substantive applications such as striking out the Plaint or seeking security for costs; the preliminary objection was merited.
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.
Legal principles established
#- 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
#- 1.The Plaintiff's Preliminary Objection dated 21st November, 2022 is allowed with costs.
- 2.The 1st Interested Party's application dated 17th November, 2022 is dismissed with costs.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property dispute
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.