LILIAN RWAMBA v ARCHANGED K. IRERI T/AMEGABYTE AUCTIONEER,KENYA COMMERCIAL BANK & ONESMUS MACHARIA T/AWATTS AUCTIONEERS [2011] KEHC 1628 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CIVIL CASE  NO 15 of 2010

LILIAN RWAMBA ………………............……….……………………………….. PLAINTIFF

VERSUS

ARCHANGED K. IRERI T/A

MEGABYTE AUCTIONEER ……….……..........………………………1ST .DEFENDANT

KENYA COMMERCIAL BANK ………..............………………………. 2ND DEFENDANT

ONESMUS MACHARIA T/A

WATTS AUCTIONEERS ……....……….......……………………..…..3RD DEFENDANT

R U L I N G

On 3rd February 2010 the Plaintiff’s chamber application under Order 39 rules 1, 2, 2A and 3 of the Civil Procedure Rules and sections 3A and 63(e) of the Civil Procedure Act was granted on ex-parte basis in terms of prayer (3). The prayer sought an injunction restraining the 2nd Defendant or his agent the 3rd Defendant from dealing with, interfering with, alienating or disposing land parcel KYENI/KIGUMO/1305 pending the inter-parte hearing and determination of the application. The application was filed under a certificate of urgency. It is common ground that since then the application has not been heard inter-partes.

On 23rd March 2011, the 2nd Defendant filed this motion under Order 40 rule 4 and Order 51 rule 1 of the Civil Procedure Rules and sections 3A and 63(e) of the Civil Procedure Act to have the ex-parte order set aside and/or discharged. The application was based on various grounds, one of which was that the Plaintiff, having obtained an ex-parteorder in an urgent application, has deliberately failed to fix the application for inter-parte hearing and this was meant to frustrate the 2nd Defendant. The other ground was that the ex-parte order was obtained without the court having the benefit of material facts pertaining to the dispute.

There is no dispute on that 25th February 2010 the Plaintiff filed an application to amend the chamber application of 3rd February 2010. The application to amend came for hearing on 26th May 2010 but the file was not placed before the Judge. Since then, the application to amend has not been fixed for hearing.

The Plaintiff swore a replying affidavit to say, among other things, that she has not fixed the injunction application for inter-partehearing because she has not been able to trace and serve the 1st Defendant. It is evident that there has been no application for substituted service. The Plaintiff’s excuse is therefore not reasonable.

Without going into the nature of the dispute between the parties, it is clear from the order of 3rd February 2010 that the Plaintiff was directed to fix a hearing date at the registry for the application within 14 days. It is apparent she did not fix a date within 14 days, or at all. A party who comes to court under a certificate of urgency and obtains an ex-parte order and does not fix the application for inter-parte hearing for a period of 12 months is certainly abusing the process of the court. The order obtained cannot be allowed to continue to be in operation.

I also consider that under Order 40 rule 4 all applications for injunction are to be heard expeditiously and in any event within 60 days from the date of filing. An ex-parte order of injunction may be granted only once for not more than 14 days and shall not be extended thereafter except once by consent of the parties or by the order of court for a period not exceeding 14 days. In short, the ex-parte order of injunction issued on 3rd February 2010 is hereby discharged. The Plaintiff shall pay the cost of this application.

DATED, SIGNED AND DELIVERED AT EMBU THIS 19TH  DAY OF SEPTEMBER 2011.

A.O. MUCHELULE

JUDGE