Okadale Commodities Ltd v Sazit Company Ltd & 2 others (Environment & Land Case E015 of 2023) [2024] KEELC 415 (KLR)
The bottom line
#A Mombasa court ruled that interim injunctions stay in force until formally set aside, and a client shouldn't suffer for their lawyer's missed court date.
What this practically means
#Executive summary
#Key legal issues
#Whether the interim injunction of 12th September 2023 lapsed following the failure of the plaintiff and counsel to attend court on 8th November 2023
The orders remained intact and in force; the judge on 8th November 2023 made no orders discharging them and no party applied under Order 40 Rule 7 to set them aside
The court traced the chronology and found that on 8th November 2023 the matter was only stood over to a mention date with notice to be served. Under Order 40 Rule 7 of the Civil Procedure Code, an injunction may only be discharged, varied or set aside on application by a dissatisfied party. Neither counsel present nor the court made such orders, so the orders of 12th September 2023 were never vacated and the court exercised its jurisdiction to confirm and extend them.
Whether the mistake of counsel in failing to attend court should be visited on the client
No; in a land matter with emotive dimensions the client should not suffer for counsel's default
Relying on Gideon Mose Onchwati v Kenya Oil Company Ltd (citing Shah v Mbogo), the court held that while a litigant is generally bound by the acts and omissions of counsel, courts must avoid unjust or ridiculous results. The litigant should not bear the consequences of counsel's default unless privy to it. Similar reasoning was drawn from Belinda Mural & 9 Others v Amos Wainaina and Joseph Wekesa Tulula v Hilda Wanjiru Tulula.
What to do with the multiplicity of duplicate applications filed by the plaintiff
The three later applications were expunged from the record with no order as to costs, as they duplicated the relief in the application dated 7th September 2023
The court found the three subsequent applications were all filed to rectify the inadvertent error arising from the failure to appear on 8th November 2023, all seeking the same interim injunctive orders. Since the original orders of 12th September 2023 were held to be still in force, the later applications added no value and served no purpose and were accordingly removed from the record.
Legal principles established
#- A litigant should not bear the consequences of an advocate's default unless the litigant is privy to the default or the default results from the litigant's failure to give due instructions
- Interim injunction orders remain in force unless discharged, varied or set aside under Order 40 Rule 7 of the Civil Procedure Code, and no such application was made
Court orders
#- 1.The interim injunction orders granted on 12th September 2023 extended until the Notice of Motion application dated 7th September 2023 is heard and finally determined
- 2.The three Notice of Motion applications dated 27th November 2023, 28th November 2023 and 6th December 2023 expunged and removed from the record with no order as to costs
- 3.The Notice of Motion dated 7th September 2023 and the 3rd Defendant's Preliminary Objection dated 25th October 2023 to be disposed of simultaneously by way of written submissions
- 4.Plaintiff/Applicant granted 7 days to file and serve a further affidavit and written submissions
- 5.1st, 2nd and 3rd Defendants granted 7 days leave to file and serve replies and written submissions
- 6.Matter fixed for inter partes highlighting of submissions (10 minutes each) on 5th February 2024, with ruling to be delivered on 20th February 2024
- Jurisdiction invoked
- Article 159(1) and (2) of the Constitution of Kenya 2010; Sections 3 and 13 of the Environment and Land Court Act No. 19 of 2011; Section 1010 of the Land Registration Act 2012; Section 150 of the Land Act 2012
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Wabungo v Mwamvula & another (Environment and Land Appeal E003 of 2024) [2025] KEELC 3309 (KLR)[2025] KEELC 3309 (KLR)7 Apr 2025
Cite this brief
#Cite this brief
Caselaw, "Okadale Commodities Ltd v Sazit Company Ltd & 2 others (Environment & Land Case E015 of 2023) [2024] KEELC 415 (KLR)", Case Analysis (2024). Not stated in the judgment (ELC Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/415/eng@2024-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.