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Court of AppealPartially AllowedCivil Appeal No. 297 of 2018 (with Civil Appeal No. 312 of 2018)

Nuh Abdille Hassan v Halima Mahmood Ali; Amal Plaza Limited & 2 others (Interested Parties) [2019] KECA 35 (KLR)

Court of Appeal
6 December 2019
2,540 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal invalidated sweeping ex parte court orders because they targeted people who were not yet parties to the lawsuit.

What this practically means

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Executive summary

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The Court of Appeal, Nairobi (Ouko (P), Githinji and Sichale, JJ.A) jointly determined two consolidated appeals against ex parte orders of the Environment and Land Court. On 7th March 2018 Okong'o, J., on a certificate of urgency, granted Halima Mahmood Ali sweeping ex parte orders - staying the subordinate court suit, restraining Amal Plaza Limited and three proposed defendants from alienating shops, and compelling them by mandatory injunction to vacate shops on the suit property - before they had been joined as parties. On 14th March 2018 Bor, J. extended those orders until 19th April 2018. The Court held that interlocutory orders can only be made in a pending suit and against a party to it; granting them against non-parties is a jurisdictional question, not a mere procedural irregularity, so the orders of 7th March 2018 were invalid. It further held that a mandatory injunction at the interlocutory stage requires compelling reasons and is rarely granted ex parte and summarily, and that the court's discretion was not exercised judicially. The extension order breached Order 40 rule 4(2), which limits an ex parte injunction to fourteen days with at most one further fourteen-day extension, rendering it invalid from inception; moreover there were no valid orders capable of extension. Both appeals were allowed, the impugned orders set aside, each party ordered to bear its own costs, and the trial court directed to hear Halima's substantive application dated 5th March 2018 on a priority basis.

Questions the Court framed

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

  1. 1.Whether the ELC had jurisdiction to grant ex parte interlocutory orders against persons who were not parties to the suit
  2. 2.Whether the ex parte orders of 7th March 2018, including a mandatory injunction, were properly granted
  3. 3.Whether the order of 14th March 2018 extending the ex parte orders was valid under Order 40 of the Civil Procedure Rules

Key legal issues

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01

Jurisdiction to grant interlocutory orders against non-parties

Holding

The ELC had no jurisdiction to grant the ex parte orders of 7th March 2018 against Hassan, Centre Star Limited and Bood as they were not parties to the suit, making the orders invalid.

Reasoning

By the time the application was made, Halima's suit was only against Amal Plaza Limited; the three proposed defendants had not been joined, and the joinder application remained unheard. Under Order 40 of the Civil Procedure Rules, interlocutory orders may only issue in a pending suit and against parties to it. Granting such orders against non-parties raises a jurisdictional question, not a mere procedural irregularity, so the ex parte orders were invalid.

p. 3
02

Grant of a mandatory injunction ex parte and summarily

Holding

The court did not exercise its discretion judicially in granting injunctive orders, including a mandatory injunction, summarily and ex parte on a certificate of urgency.

Reasoning

The orders of 7th March 2018 were made in chambers, essentially on a certificate of urgency, without hearing counsel. A mandatory injunction at the interlocutory stage requires compelling reasons and is rarely granted ex parte. Halima raised numerous factual matters on breach of a joint venture agreement, and the proposed defendants' case was unknown, so summary mandatory relief was unwarranted.

p. 3
03

Validity of the extension of ex parte orders by Bor, J.

Holding

The order of 14th March 2018 extending the ex parte orders until 19th April 2018 exceeded the fourteen-day limit in Order 40 rule 4(2) and was invalid from inception; in any event, there were no valid orders capable of extension.

Reasoning

Order 40 rule 4(2) permits an ex parte injunction to be granted only once for up to fourteen days, extendable once by consent or court order for not more than fourteen days. The extension until 19th April 2018 breached this. Complaints of lack of service under rule 4(3) were not resolved. Since the underlying orders of 7th March 2018 were void for want of jurisdiction, nothing valid existed to extend.

p. 3

Legal principles established

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  • Interlocutory orders can only be made in a pending suit and against a party to a suit; granting them against non-parties is a jurisdictional defect, not a mere procedural irregularity.
  • A mandatory injunction at the interlocutory stage is granted only for compelling reasons and is rarely granted ex parte and summarily.
  • An ex parte injunction may be granted only once for not more than fourteen days and shall not be extended thereafter except once by consent of parties or by order of the court for a period not exceeding fourteen days.
  • Breach of the time limits in Order 40 rule 4(2) on extension of ex parte injunctions renders the extended order invalid from inception.

Court orders

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  1. 1.The two appeals are allowed
  2. 2.The impugned orders dated 7th March 2018 and 14th March 2018 are set aside
  3. 3.No order as to costs of the appeal; each party to bear its, his or her own costs
  4. 4.The trial court to hear and determine the application dated 5th March 2018 on a priority basis

The bench

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

William Ouko
W. OukoJA
Currently serving
majority

Wrote the judgment

majority
majority
On appeal from
High Court of Kenya at Nairobi (Environment and Land Court)
ELC Cause No. 775 of 2017
Jurisdiction invoked
First appeal to the Court of Appeal against interlocutory orders of the Environment and Land Court
Consolidated with
Civil Appeal No. 312 of 2018

Relief refused

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Costs of the appeal

The court had no jurisdiction to grant or extend the orders, so no costs order was made

p. 3

Costs

No order as to costs of the appeal; each party shall bear its, his or her own costs of the appeal.

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.

The granting of interlocutory orders against a person or persons who is or are not parties to a suit is not a mere procedural irregularity. Rather, it is a jurisdictional question.
p. 3Jurisdiction and non-parties
A mandatory injunction at an interlocutory stage is granted for compelling reasons. It is rare to grant a mandatory injunction, ex parte and summarily.
p. 3Mandatory injunctions at interlocutory stage
An ex parte injunction may be granted only once for not more than fourteen days and shall not be extended thereafter except once by consent of partes or by the order of the Court for a period not exceeding fourteen days
p. 3Duration and extension of ex parte injunctions
In the result, the two appeals are allowed. The impugned orders dated 7 th March, 2018 and 14th March, 2018 are set aside.
p. 3Disposition
As the court had no jurisdiction to grant or extend the orders, we make no order as regards the costs of the appeal and each party shall bear its, his or her own costs of the appeal. The trial court shall hear and determine the application dated 5 th March, 2018 on priority basis.
p. 3Costs and final orders

Issues in the judgment

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minor

The judgment inconsistently dates the impugned ex parte orders as '7th March, 2019' in one passage and '7th March, 2018' elsewhere.

minor

The judgment inconsistently renders the appellant's name in Civil Appeal No. 312 of 2018 as 'Center Star Limited' in the narrative and 'Centre Star Limited' elsewhere.

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, "Nuh Abdille Hassan v Halima Mahmood Ali; Amal Plaza Limited & 2 others (Interested Parties) [2019] KECA 35 (KLR)", Case Analysis (2019). Civil Appeal No. 297 of 2018 (with Civil Appeal No. 312 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/35/eng@2019-12-06

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