Erick Kimingichi Wapangana Magharibi Machineries Ltd v Equity Bank Limited Antique Auctioneers Agencies [2014] KEHC 970 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BUNGOMA

IN THE  ENVIRONMENT & LAND COURT OF KENYA AT BUNGOMA

CIVIL CASE NO. 91 OF 2011

ERICK KIMINGICHI WAPANGANA MAGHARIBI MACHINERIES LTD.......PLAINTIFF

VERSUS

EQUITY BANK LIMITED ANTIQUE AUCTIONEERS AGENCIES...........DEFENDANT

RULING

[1].      The respondents in this case filed a suit against the applicant and  Antique Auctioneers Agencies and  obtained  an order  in the following terms.

(a). “Pending the hearing and determination of this suit, the defendant, their servants, agents,  be restrained by way of injunction from offering for sale or having any act to sale the plaintiff's immovable property namely E. Bukusu/S. Kanduyi/13584, E. Bukusu/S. Nalondo/2741 and  E. Bukusu/S. Nalondo/2741.

(b).      The  first defendant/respondent do furnish  a full account of the plaintiffs loan account with it.”

[2].  The order was issued on  12th October 2011 by the Deputy Registrar of the High Court at Bungoma.The appellants were aggrieved by the said order and  filed a notice of appointment on 22nd July 2014 and a notice of motion  dated 22nd July 2014.  The motion prays that the  injunction issued herein by the court on 12th October 2014 against the defendants herein be discharged,  varied and or set aside.

[3]. The main grounds  for setting aside being  that the injunction has lapsed by operation  of law and that the plaintiff is not paying  the amount of loan due, and the amount continues to increase daily.

[4].  The 1st respondent  on his part swore an affidavit replying   to the motion filed by the applicants herein.  He basically says that he was  loaned Kshs. 7,800,000. 00/=. He  states that not all of it was  disbursed for his business.  That he was attached by the  2nd defendant who broke into his premises and attached his three vehicles and auctioned the same.  He alleges he was not  credited with  that amount.  He avers that  the court ordered that he be  furnished with his account which  has not been done.

[5].  The defendant in this case argue that  they are not at present seeking for the suit to be dismissed, they are saying that the injunction has ceased to  exist by operation of law.  And  that  is what they are only at the moment interested in.

[6].  The injunction herein was issued by the court on 12th October  2011.  The same has  been in place for a period of  3 years one month.

Order 40 Rule 6 states;

Where a suit in respect of which an  interlocutory injunction has been granted is not determined within a period of twelve months from the date of the grant, the injunction shall lapse unless  for any sufficient reason the court orders otherwise.

[7].  The suit herein is still pending in court.  The injunction  granted herein was not  extended and/or  varied by the court prior to its expiry on 11th of October 2012.  The same  expired on that date.  There has  been  no injunction from  12th October 2012.

[8].  The court is being asked to  declare  that which is clearly set out by order  40 rule 6. I need not say  more  on this application.  I cannot  discharge or set aside that which is not in  existence.

[9].  In the final analysis, I state that there is no injunction in this matter at all.  The applicants application succeeds only  to that  extent.  Otherwise the applicants application, its filing and the orders it seeks cannot be granted for the reason that there is no injunction in the first place.

Each party shall bear their  own costs.

Dated and delivered  this  16th day of December 2014.

S. MUKUNYA

JUDGE.