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Court of AppealDismissedCivil Appeal No 5 of 1985

Geoffrey Ndungu Theuri v Law Society of Kenya [1988] KECA 81 (KLR)

Court of Appeal
8 July 1988
FAF.K. ApalooJMJ.R.O. MasimeRKR.O. Kwach
2,913 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed you cannot get an injunction in a case that hasn't actually been filed as a proper suit.

What this practically means

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Executive summary

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The appellant, who did not hold a university degree, was articled to the firm of Gautama and Kibuchi under section 13 of the Advocates Act to qualify as an advocate. The Law Society of Kenya informed the firm that the appellant was not qualified to serve as an articled clerk, and the firm discharged him. The appellant immediately brought a miscellaneous application under order 39 rule 2 of the Civil Procedure Rules and section 3A of the Civil Procedure Act seeking to restrain the Society from interfering with his articles, without filing a plaint. Porter J struck out the application on November 22, 1983, holding that without a plaint the court had no jurisdiction, and awarded costs to the Society, also refusing an adjournment. The appellant later filed a plaint and obtained an interim injunction, but then sought review of the November 22 ruling and the costs order, which was refused on May 3, 1984. He appealed. The Court of Appeal unanimously dismissed the appeal. Apaloo JA held that order 6 rule 1 mandates commencement of suits by plaint, that interim relief can only be founded on a competent suit, that section 3A inherent powers cannot displace the mandatory mode of commencement, that the Kenyan rules contain no analogue to English order 29 rule 1(3) permitting pre-action applications, and that the refusal to review and to adjourn were proper. Kwach Ag JA, in a separate judgment, emphasized that order 39 presupposes a suit and that section 3A confers no power to act without jurisdiction. As the Society did not appear, there was no order as to costs on the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court had jurisdiction to grant an interlocutory injunction where no plaint had been filed
  2. 2.Whether the judge erred in refusing to review his ruling of November 22, 1983 and the order of costs made therein
  3. 3.Whether the judge wrongly exercised his discretion in refusing an adjournment to allow the appellant to file a plaint
  4. 4.Whether section 3A of the Civil Procedure Act conferred inherent jurisdiction to entertain the miscellaneous application

Key legal issues

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01

Jurisdiction to grant interlocutory injunction in absence of a plaint

Holding

The High Court had no jurisdiction to grant an interlocutory injunction where no plaint had been filed; the mode of commencing civil suits is mandatory and an interim remedy can only ride on a competent suit.

Reasoning

Order 6 rule 1 provides in mandatory terms that every suit shall be instituted by presenting a plaint. Order 39 refers expressly to a suit. The proper remedy for the appellant was to sue for a perpetual injunction and seek interim relief pending that suit. The legislature having prescribed the mode of commencement, inherent powers under section 3A cannot be used to sanction any other method, and the law is the same for lawyers and laymen alike.

p. 3
02

Refusal to review the ruling of November 22, 1983 and the order of costs

Holding

The judge was right to refuse review; the original ruling being correct, there was nothing to review, and costs properly followed the event as the Society was obliged to defend an incompetent application.

Reasoning

The appellant's real object was to rid himself of the costs order, not to obtain any fresh relief, since he had already obtained his injunction after filing a plaint. The Society succeeded in showing the interim remedy sought did not lie, and costs normally follow the event. The judge also awarded further costs of the review day because the defendants had been brought to court for nothing.

p. 2
03

Refusal to grant an adjournment to file a plaint

Holding

The refusal to adjourn was a proper exercise of judicial discretion; no reasonable judge would have granted an adjournment on these facts.

Reasoning

Adjournment is a matter of judicial discretion to be exercised judicially on the facts of each case. The appellant had not set on foot a competent action, the jurisdictional objection was substantial rather than trivial, and there was no reason why the Society should have an application with no substratum remain hanging on its neck.

p. 3
04

Scope of section 3A of the Civil Procedure Act

Holding

Section 3A does not confer power on the court to act without jurisdiction and cannot be invoked to bypass the prescribed mode of commencing suits.

Reasoning

Kwach Ag JA, concurring, noted that a suit is defined in section 2 of the Civil Procedure Act as civil proceedings commenced in the manner prescribed by the Rules, that order 39 relief requires a suit, and that section 3A, which he described as grossly abused, gives the court no power to act without jurisdiction.

p. 5

Legal principles established

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  • A temporary injunction under order 39 of the Civil Procedure Rules can only be sought in an existing suit; a competent action must be commenced by plaint before interim relief can be granted.
  • The inherent jurisdiction under section 3A of the Civil Procedure Act cannot be used to sanction a method of commencing a suit other than that prescribed in mandatory terms by the rules.
  • The absence of a plaint is a substantial jurisdictional point, not a trivial technicality, and the court has discretion to award costs to a party obliged to defend an incompetent application.
  • Unlike the English order 29 rule 1(3), Kenyan procedure rules contain no provision empowering pre-action interlocutory applications, so no such power exists.

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to costs on the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

FA
majority

Wrote the judgment

JM
majority

Wrote the judgment

Brief concurrence agreeing that the appeal lacks merit and should be dismissed with no order as to costs.

I agree that this appeal has no merit and should be dismissed with no order as to costs.p. 4
RK
majority

Wrote the judgment

Separate judgment tracing the statutory route to admission as an advocate under sections 12 and 13 of the Advocates Act, holding that injunctive relief under order 39 requires a filed suit, that section 3A cannot cure the absence of jurisdiction, and that the costs order was a proper exercise of discretion.

an applicant is not entitled under order 39 of the Civil Procedure Rules to seek or obtain an order for injunctive relief against another party without filing a suit.p. 5
On appeal from
High Court at Nairobi
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over a ruling and orders of the High Court

Relief refused

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Setting aside of the High Court rulings of November 22, 1983 and May 3, 1984 and the associated order of costs

The judge correctly held that without a plaint the court had no jurisdiction to grant an injunction, and costs properly followed the event; the refusal to review and the refusal to adjourn were proper exercises of discretion.

p. 3

Costs

No order as to costs on the appeal, the Society not having appeared

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In my opinion, the rulings made by the court on November 22, 1983 and May 3, 1984, were right as was the refusal to grant an adjournment on November 22, 1983. It follows that this appeal fails and ought to be dismissed. As the Society has not appeared, there should be no order as to costs on this appeal.
p. 3Disposition
I cannot see how when the legislature provided in mandatory terms how a suit like the present should be commenced, the court could properly use inherent powers conferred by section 3A to sanction any other method.
p. 3Inherent jurisdiction cannot displace mandatory procedure
It was not. It was a substantial point that went to the jurisdiction of the court.
p. 3Want of a plaint is jurisdictional, not a technicality
The grossly abused section 3A of the Civil Procedure Act does not give the court the power to act without jurisdiction.
p. 5Limits of section 3A
Costs normally follow the event and it was perfectly legitimate for the judge to make an order for costs in the Society’s favour.
p. 2Costs on unsuccessful interim applications

Issues in the judgment

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minor

The heading of the judgment is misspelt as 'JUDGMNET' in the document.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Geoffrey Ndungu Theuri v Law Society of Kenya [1988] KECA 81 (KLR)", Case Analysis (1988). Civil Appeal No 5 of 1985. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/81/eng@1988-07-08

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