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ELRCDismissedNotice of Motion dated 26th November 2012 (case transferred from Embu Court)· [2013] KEELRC 327 (KLR)

DISHON MAREKO NGINE & 4 Others v FAUSTION NJERU NJOKA & Another [2013] KEELRC 327 (KLR)

High Court of Kenya
2 April 2013
BOB.N. Olao
895 words in judgment
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The bottom line

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Kenya's High Court dismissed a bid to freeze land parcels because the lawsuit was already over, confirming injunctions only apply to pending suits.

What this practically means

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Executive summary

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This ruling by B.N. Olao J of the High Court (case transferred from Embu Court) determined a Notice of Motion dated 26th November 2012 in which the applicants, Mbuya Ya Andu A Nyaga through their chairman Francis Mbaka, sought an injunction restraining the respondents from transferring, sub-dividing, selling, alienating, disposing of, charging or dealing with parcels of land NTHAWA/GITIBURU/886 to 2034. The application was brought under Order 40 Rules 1(a), 2(i) and 3(3) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The court traced the litigation history: judgment had been delivered by Justice Etyang on 17th December 1999 in High Court Civil Appeal No. 52 of 1996; an appeal, Civil Appeal No. 42 of 2001 in the Court of Appeal at Nyeri, was struck out with costs on 5th November 2004; and a Notice of Motion of 16th November 2004 seeking to review or set aside Justice Etyang's judgment remained unprosecuted. The court held there was no pending suit, so interlocutory injunctive relief under Order 40 could not issue; Rule 2(i) could not assist an applicant fourteen years after judgment; and the applicants failed the Giella v Cassman Brown prima facie case threshold, the matter having been finalized by the Court of Appeal. The application was dismissed with costs to the 1st respondent. The court expressly declined to comment on the unprosecuted review application.

Key legal issues

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01

Availability of interlocutory injunction absent a pending suit

Holding

Interlocutory injunction under Order 40 is unavailable where the suit has been finally determined and the appeal struck out.

Reasoning

Order 40 Rule 1 permits injunctive orders only pending the disposal of a suit or until further orders. Here judgment was delivered on 17th December 1999 and the appeal (Civil Appeal No. 42 of 2001) was struck out on 5th November 2004. The only live matter is an unprosecuted application to review that judgment, which was not before the court.

p. 2
02

Inapplicability of Order 40 Rule 2(i)

Holding

Rule 2(i) cannot aid an applicant seeking a post-judgment injunction 14 years after judgment where the matter did not involve breach of contract or other injury.

Reasoning

The rule confines injunctions to cases of breach of contract or other injury of a non-pecuniary nature, and even then permits application only before or after judgment. Judgment was delivered in 1999 and the appeal was struck out in 2004, so the applicants cannot invoke the rule.

p. 2
03

Giella v Cassman Brown threshold

Holding

The applicants failed to demonstrate a prima facie case with a probability of success because the matter was finalized by the Court of Appeal.

Reasoning

The guiding principles for an injunction require a prima facie case with a probability of success. The applicants' rights over the subject matter were settled in 1999 and the appeal was struck out in 2004; consequently no prima facie case could be established and any damages would arise from a decision of a superior court.

p. 2

Legal principles established

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  • A temporary injunction under Order 40 can only issue in respect of property in a pending suit; where judgment has been delivered and the appeal struck out, no interlocutory injunction can issue.

Court orders

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  1. 1.The applicants' Notice of Motion dated 26/11/2012 is dismissed with costs to the 1st respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1(a), Rule 2(i), Rule 3(3)
  • Civil Procedure ActSection 3A
  • Constitution of KenyaArticle 40(1)

Cases cited (1)

  • GIELLA VS CASSMAN BROWN
    1973 E.A. 358
On appeal from
Court of Appeal at Nyeri
Civil Appeal No. 42 of 2001
Jurisdiction invoked
Order 40 Rules 1(a), 2(i) and 3(3) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

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, "DISHON MAREKO NGINE & 4 Others v FAUSTION NJERU NJOKA & Another [2013] KEELRC 327 (KLR)", Case Analysis (2013). Notice of Motion dated 26th November 2012 (case transferred from Embu Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/327/eng@2013-04-02

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