Case ID:92046

Director of Public Prosecutions v Justus Mwendwa Kathenge & 2 others [2016] eKLR

Case Metadata

Case Number:

Civil Appeal 201 of 2014

Parties:

Director of Public Prosecutions v Justus Mwendwa Kathenge, Attorney General & Chief Magistrate’s Court

Date Delivered:

25 Nov 2016

Case Class:

Civil

Court:

Court of Appeal at Nairobi

Case Action:

Judgment

Judge(s):

Milton Stephen Asike-Makhandia, William Ouko, Kathurima M'inoti

Citation:

Director of Public Prosecutions v Justus Mwendwa Kathenge & 2 others [2016] eKLR

Advocates:

Mr. Ashimosi for the Appellant

Mr. Omogeni, S.C for the 1st Respondent

Miss. Wambui for the 2nd Respondent

Case History:

Being an appeal from the Judgment of the High Court of Kenya at Nairobi (Lenaola, J.) dated 21st March, 2014, in PETITION NO.372 of 2013)

Court Division:

Civil

County:

Nairobi

Advocates:

Mr. Ashimosi for the Appellant

Mr. Omogeni, S.C for the 1st Respondent

Miss. Wambui for the 2nd Respondent

History Docket No:

PETITION NO.372 of 2013

History Judges:

Isaac Lenaola

Case Summary:

Conditions under Order 40 of the Civil Procedure Rules to curb abuse of temporary injunctions orders

Director of Public Prosecutions v Justus Mwendwa Kathenge & 2 others

Civil Appeal No 201 of 2014

Court of Appeal at Nairobi

A Makhandia, W Ouko, K M’inoti, JJA

November 25, 2017

Reported by Teddy Musiga

Civil Practice and Procedure

– Remedies – Injunctions - temporary injunctions – conditions pre-requisites for the grant of orders of temporary injunctions - Constitution of Kenya, 2010, article 23; Civil Procedure Rules, Order 40 Rule 4

Brief Facts:

The background to the instant appeal started at the Kibera Chief Magistrate’s Criminal Case No. 2450 of 2013 where the Respondents had been charged with unlawfully constructing a building without meeting the required standard. The said building (a six storey in Pipeline Estate, Nairobi) collapsed causing death of 4 casual workers while others suffered grievous injuries. The 1

st

Respondent then petitioned the High Court alleging that his fundamental rights and freedoms under the Constitution of Kenya, 2010 had been violated upon being arraigned in court. He also sought orders to prohibit the appellant (Director of Public Prosecution) from receiving evidence/ and or continuing with the trial in relation to the collapsed building. The High Court held and declared the appellant’s decision to charge the Respondents at the Kibera Chief Magistrate’s Criminal Case No. 2450 of 2013 was unjust, null and void and thus prohibited the Magistrate’s court from entertaining the criminal charges. On appeal to the instant court, the appellant argued that the decision of the High Court erred by interrogating the decision of the appellant to charge the 1

st

respondent; that there was no proof of violation of the 1

st

respondents’ rights; that the High Court failed to appreciate that the jurisdiction of a court in a constitutional matter was limited to inquiry of violations of rights and fundamental freedoms; and that the High Court went into the merits or demerits of the charges that were yet to be proved in a trial.

Issue:

How should the orders of temporary injunctions be exercised to avoid their abuse?

Held:

In the exercise of the powers under article 157 of the Constitution of Kenya, 2010, the Director of Public Prosecutions (DPP) was to be free from interference or direction of any person or authority having regard only to the public interest, the interests of the administration of justice and the need to prevent and avoid the abuse of the legal process. That independence was similarly restated in section 7 of the Office of the Director of Public Prosecutions Act which added that the DPP was only subject to the Constitution and the law. He was protected from personal liability if he acted in good faith in the execution of the functions, powers and duties of that office.

Prosecutorial powers have limits. They must never be abused, never to be exercised oppressively, maliciously or against public interest. Where it was clear that the power to prosecute was being misused, the court under its inherent jurisdiction would stop such prosecution as it would amount to an abuse of the process of the Court.

Pursuant to the provisions of the Physical Planning Act and the City Council’s own by – laws, the 1

st

Respondent on behalf of the Council, inspected the construction and noting, first that it had not been licensed and seeing its condition, issued an enforcement notice for its demolition so as to avert a calamity. Because that enforcement notice affected other 100 buildings including the owner of the building in question, the developers instituted an action seeking an injunction that the Council and its officers be restrained from evicting them or demolishing their buildings. However, while the injunction was still in force the building collapsed.

Enforcement notices were issued under section 38 of the Physical Planning Act where developments were being carried out without permission. If within the period specified in the notice, any measures required to be taken had not been taken, the Council could take the action itself and the owner of the development condemned to reimburse any expense reasonably incurred. The Council following the law issued the requisite notice whose enforcement was frustrated by an injunction.

Traditionally the basis of application of the equitable remedy of injunction was section 63 of the Civil Procedure Act and Order 40 (previously 39) of the Civil Procedure Rules. Under the Constitution of Kenya, 2010; article 23 specifically identified an order of injunction as one of the reliefs that a court could grant if it was satisfied that a person’s right or fundamental freedom had been denied, violated, infringed or threatened.

The remedy of temporary injunction was a vital tool intended to preserve the ends of justice from being defeated. Order 40 of the Civil Procedure Rules recognised that a temporary injunction could be sought where a property in dispute was in danger of being wasted, damaged, alienated or wrongfully sold in execution of a decree, or where a party threatened or intended to remove or dispose of the property in order to defeat any execution that could ultimately be passed. An injunction could also be applied for to restrain a party from committing a breach of contract or other injury. Further, a temporary injunction could not be claimed as a matter of right, neither could it be denied arbitrarily by the Court.

Because of its importance and susceptibility to abuse, certain guidelines were developed while considering an application for temporary injunction. The three well known tests enunciated in

Giella v Cassman Brown

(1973) EA 358 were to the effect that a party seeking a temporary injunction had to establish a

prima facie

case, whether the party seeking an injunction could suffer irreparable damage if the injunction was denied, and in case of doubt the issue in contention ought to be decided on the scale of a balance of convenience.

In the year 2010, the Rules Committee being conscious of the susceptibility to abuse of the remedy of temporary injunction introduced in the Civil Procedure Rules certain strictures/ conditions in Order 40 rule 4, intended to obviate those abuses. They included;

Where the Court was satisfied that the object of granting the injunction would be defeated by the delay, it could hear the application

ex parte

.

An

ex parte

injunction could be granted only once for not more than 14 days which in turn could not be extended thereafter except once by consent of the parties or by order of the Court for a period not in excess of 14 days.

Where an

ex parte

injunction had been granted, the application, pleading and the order had to be served on the other side within 3 days of the date of issue of the

ex parte

order and in default, the injunction could automatically lapse.

All applications for injunction had to be heard expeditiously and in any event within 60 days from the date of filing unless for good reason time was extended by the Court.

After the

inter partes

hearing, the ruling had to be delivered either at once or within 30 days of the conclusion of the hearing.

Where a suit in respect of which an interlocutory injunction had been granted was not determined within 12 months from the date of the grant, the injunction had to lapse unless for some sufficient reason.

It was critical for courts to remember the sequence of consideration of the

Giella v Cassman

Brown principles, that even where prima facie case was established, an injunction could not be granted if the injury or damage to be suffered was not irreparable or was capable of compensation. The timelines for each stage had to be complied with. The death of innocent Kenyans could have been averted if the guidelines in

Giella v Cassman

Brown case and the principles in Order 40 were followed. Therefore & without hesitation, the Court declared that people lost lives and others suffered grave injuries as a direct consequence of a court order.

It was an abuse of prosecutorial powers for the appellant to have charged the 1

st

Respondent. His prosecution was clearly in violation of article 157 (11) of the Constitution of Kenya, 2010. The duty to enforce building regulations was, at the time vested in the Council, whose Chief Officer was the Clerk. In any event, it was demonstrated that it was the Council that had taken lawful steps of averting a calamity when it was stopped by an injunction and its chief officers threatened with civil jail.

[

Obiter

]: “We have gone into these details to remind the superior courts below and other trial courts of the importance of adhering to these strictures, which are rarely complied with, with the result that like in the matter under consideration, a suit filed in 2009 specifically for injunction was still pending determination in 2011 when the tragic accident occurred. It is not for nothing that the rules and general principles governing the grant of interlocutory injunction have been scrupulously developed”.

Appeal dismissed.

Extract:

Parties:

Director of Public Prosecutions v Kathenge & 2 others [2016] KLR-CAK

Case Number:

Civil Appeal No 201 of 2014

Coram:

A Makhandia, W Ouko & K M’Inoti JJ A

Court Station:

Court of Appeal at Nairobi

Delivery Date:

November 25, 2016

Case History:

Being an appeal from the Judgment of the High Court of Kenya at Nairobi (Lenaola, J) dated 21

st

March, 2014, In Petition No 372 of 2013)

Cases

East Africa

1.

D’Costa, Peter George Antony v Attorney General & another

Petition No 83 of 2010 –(Applied)

2.

Giella v Cassman Brown & Co Ltd

[1973] EA 358 –(Followed)

3.

Githunguri v R

epublic [1986] KLR 1–(Applied)

4.

Karmali, Mohammed Gulam Hussein Fazal & another v Chief Magistrate’s Court Nairobi & another

Miscellaneous Civil Application No 367 of 2005 –(Applied)

5.

Republic v

Commissioner of Police & 3 others ex parte Michael Monari

Miscellaneous Application No 68 of 2011 –(Applied)

6.

Selle & another v Associated Motor Boat Co Ltd & Others

[1968] EA 123 –(Applied)

Statutes

East Africa

1.Civil Procedure Act (cap 21) section 63–(Interpreted)

2.Civil Procedure Rules (cap 21 Sub Leg) order 40 rule 4 –(Interpreted)

3.Constitution of Kenya, 2010 articles 23; 157(11); 236 –(Interpreted)

4.Court of Appeal Rules (cap 9 Sub Leg) rule 29 –(Interpreted)

5.Office of the Director of Public Prosecutions Act, 2013 (Act No 2 of 2013) section 7–(Interpreted)

6.Penal Code (cap 63) sections 30(1); 202; 205, 244 –(Interpreted)

7.Physical Planning Act (cap 286) section 38 –(Interpreted)

Advocates

1.Mr Ashimosi for the Appellant

2.Mr Omogeni, Senior Counsel, for the 1

st

Respondent

2.Miss Wambui for the 2nd Respondent

History Advocates:

One party or some parties represented

History County:

Nairobi

Case Outcome:

Appeal dismissed with costs

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: MAKHANDIA, OUKO & M’INOTI, JJ.A.)

CIVIL APPEAL NO. 201 OF 2014

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS …………...………APPELLANT

AND

JUSTUS MWENDWA KATHENGE……...……………….1

ST

RESPONDENT

THE ATTORNEY GENERAL ………………..…….………2

ND

RESPONDENT

THE CHIEF MAGISTRATE’S COURT ……....………..…..3

RD

RESPONDENT

(Being an appeal from the Judgment of the High Court of Kenya at Nairobi (Lenaola, J.) dated 21

st

March, 2014,

in

PETITION NO.372 of 2013)

**************

JUDGMENT OF THE COURT

A recent article in one of the daily newspapers in the country carried a headline that read

“COURT INJUNCTIONS SLOW PROGRESS OF MEGA

PROJECTS”

and listed recent court orders ranging from stopping the transfer of police officers, construction of multimillion projects to prosecution of corruption and other high profile cases, to demonstrate how such orders are potential impediments to economic growth. The appeal before us does not

per se

relate to orders of injunction but the relevance of this will shortly become clear.

On 14

th

June, 2011 a six storey building under construction in Pipeline Estate, within Embakasi, Nairobi, collapsed causing the death of four casual workers while others suffered grievous injuries. It became apparent that the construction was being undertaken in violation of the law. Consequently, Bernard Gakobo Karungu who was the developer, Justus Mwendwa Kathenge, the 1

st

respondent, and three others were charged in the Magistrate’s Court Criminal Case No. 2450 of 2013 with four counts of manslaughter contrary to

section 202

as read with

section 205

of the Penal Code and four counts of negligent act causing harm contrary to

section 244

of the Penal Code.

The 1

st

respondent, who was, at the time material to the matters under consideration, the Enforcement Officer with the then Nairobi City Council (the Council), petitioned the High Court upon being arraigned in court, alleging that his rights and fundamental freedoms under the Constitution were being violated. He prayed for a declaration that he was not responsible for the alleged offence; that the decision of the Director of Public Prosecutions, the appellant (the D.P.P) to prefer charges against him were null and void, an order of prohibition against the appellant, the Attorney General and the trial court from presenting any charges relating to the alleged manslaughter and negligence before the court or requiring him to take plea or to stand trial. He further prayed,

inter alia

that the trial court be prohibited from receiving evidence and/or continuing with the trial in relation to the collapsed building.

The petition was premised on the fact that, pursuant to the powers vested in the Council by the Physical Planning Act, the 1

st

respondent inspected the building in question, among others in the area, and upon coming to the conclusion that it was erected illegally, without the requisite permission of the Council as required by

section 30(1)

of the Act, and because of the dangers it posed, he issued an enforcement notice requiring the developer to cease further construction and to remove the development within seven days, failing which the Council would demolish it. He further explained that upon issuing this notice, the developer and others moved to the High Court in Civil Case No.155 of 2009 and obtained

ex

parte

orders against the 1

st

respondent, and others, restraining them from interfering with the construction of the building; that subsequently the officials of the Council were cited and committed to civil jail for a period of 21 days for being in contempt of court over the foregoing restraining orders, although the committal orders were stayed. While the restraining and committal orders were pending, the building collapsed with the said catastrophic and fatal consequences.

The investigating officer Cpl. Patrick Muraguri, swore an affidavit in opposition to the petition in which he blamed the 1

st

respondent for failing to coordinate the enforcement of the building by-laws through surveillance, issuance of the necessary enforcement notices, stoppage or demolition of the building and arrest of and preference of charges against the developer. The deponent emphasized that in matters of investigations and prosecution of criminal cases by dint of

Article 157

of the Constitution, the appellant exercises unfettered discretion, and does not require the consent or authority of anyone to commence criminal proceedings; that the appellant does not act under the direction or control of any person or authority.

Lenaola, J.,

as he then was, considered the petition and the response, from which he framed one broad question, whether the appellant acted within his constitutional mandate when he commenced the prosecution of the 1

st

respondent. In providing the answer to that question, the learned Judge made reference to the provisions of

Article 157

of the Constitution under which the office of the D.P.P is established and powers and tenure provided. In exercise of the State powers of prosecution, the appellant has the sole mandate and discretion to institute, undertake and terminate any criminal proceedings before any court. In carrying out these functions, the appellant does not require consent of any person or be under the direction or control of any person or authority. The learned Judge, however, noted that, in terms of

Article 157(11)

the courts can interfere with those powers if they are exercised without regard to the public interest, or against the interest of the administration of justice, or where the power is exercised in violation or abuse of the court process. The learned Judge relied on the following decisions ,

Githunguri

v

R

,(1986) KLR 1,

Gulam & Another

v

Chief Magistrate’s Court

& Another

Nairobi H.C. Misc. Application No. 367 of 2005,

Peter D’Costa

v

AG & Another

, H. C. Petition No. 83 of 2010 and

Michael Monari & Another

v

Commissioner of Police & 3 Others

, H. C. Misc. Application No. 68 of 2011, to emphasize the point that prosecutorial powers must not be oppressive, vexatious, frivolous,

malafides,

or used to abuse the court process or for improper purpose, for instance to harass a party or to secure private vengeance; that before the power is resorted to, there must be material evidence on which a probable conviction may be found; that a court of law is enjoined by the law to summarily prevent its process from being used as a means of oppressing and violating the rights and fundamental freedoms of citizens.

On the basis of these principles the learned Judge concluded that the interim order of injunction and the committal order for contempt of court had the effect of stalling the enforcement of the notice issued by the Council under the Physical Planning Act which was intended to stop further construction and to force the developer to demolish or in default, the Council to demolish the offending buildings. In the learned Judge’s view the particulars of some of the charges against the 1st respondent, were misplaced, ridiculous and demonstrated bad faith. For instance, although the 1

st

respondent’s capacity was clear and obvious, he was accused of

“unlawfully constructing a building without

meeting the required

standard.”

According to the learned Judge the 1

st

respondent as a public officer, protected by Article 236 of the Constitution, had nothing to do with these particulars; and that the appellant was engaged in the abuse of the court process.

Accordingly, the court allowed the petition with no orders as to costs, declared the appellant's decision to charge the 1

st

respondent in Kibera Chief Magistrate’s Criminal Case No. 2450 of 2013 to be unjust, null and void, stopped the Magistrate’s court by an order prohibiting it from entertaining the criminal charges.

The appellant with a whopping 20 grounds of appeal has challenged before us that decision, arguing,

inter alia,

that it was in error for the learned Judge to interrogate the decision of the appellant to charge the 1

st

respondent; that there was no proof of violation of the 1

st

respondent’s rights; that the learned Judge failed to appreciate that the jurisdiction of a court in a constitutional matter is limited to inquiry of violations of rights and fundamental freedoms; that the learned Judge went into the merits or demerits of the charges that were yet to be proved in a trial; and that the court granted prayers not sought.

These grounds were reiterated in oral arguments before us by Mr. Ashimosi, learned counsel for the appellant, who prayed that we allow the appeal with costs and set aside the impugned judgment of 21

st

March, 2014. Although the Attorney General was joined in the proceedings and was infact represented in this appeal by Miss. Wambui, he had no role whatsoever in the matters the subject of this appeal.

Opposing the appeal Mr. Omogeni, S.C condensed his submissions into two, whether the 1

st

respondent’s enforcement notice was stopped by an injunction issued by a court of competent jurisdiction in H.C.C.C NO.155 of 2009 and whether by the provisions of

Article 236

of the Constitution the 1

st

respondent, a public officer could be victimized for performing, in accordance with the law, the functions of his office. Learned Senior Counsel argued that the 1

st

respondent, as a law abiding citizen could not go against the decision of a competent court, a fact that was reiterated by the advocates for the Council, Messrs Masire & Mogusu Advocates, in their letter to the Town Clerk warning that should the Council disregard the restraining order and proceed to execute the enforcement order it would be in contempt of court. Regarding

Article 236

it was contended that the 1

st

respondent as a public officer acting in good faith could not be accused and charged with a criminal offence for discharging his functions.

Learned Senior Counsel took issue with the manner the D.P.P. exercises the powers vested in that office by

Article 157(11)

of the Constitution; that it is erroneous for the office to purport to be gods unto themselves, with powers that they believe cannot be questioned or interrogated, even where they are blatantly abused. That abuse according to counsel was demonstrated by the strange charges preferred against the 1

st

respondent, namely, that he and others,

“unlawfully constructed a building without meeting the required standard…..,”

yet it was the 1

st

respondent who had issue the enforcement notice. The appellant's powers, which are described in

Article 157

as State powers of prosecution, include institution, undertaking, taking over, continuing and discontinuing all criminal prosecutions.

We have considered the grounds of appeal, the response and the authorities cited. We are required as the first appellate court by

rule 29

of the Court of Appeal Rules, to re-appraise the evidence and to draw inferences before coming to our own independent conclusion. See

Selle & Another

v

Associated Motor Boat

Co. Ltd & Others

(1968) EA 123.

In the exercise of the enormous powers under

Article 157,

the Constitution commands that the D.P.P. shall be free from interference or direction of any person or authority, having regard only to;

“……….the public interest, the interests of the administration

of justice and the need to prevent and avoid abuse of the legal process”

This independence is similarly restated in

section 7

of the Office of the Director of Public Prosecutions Act, which adds that the D.P.P is only subject to the Constitution and the law. He is protected from personal liability if he acts in good faith in the execution of the functions, powers and duties of that office.

From the days of

Githunguri

(supra), the prosecutorial powers, then exercised by the Attorney General, was held to have limits; that it must never be abused, never exercised oppressively, maliciously or against the public interest. The Court in that decision emphasized that, where it was clear that the power to prosecute was being misused, the court, under its inherent jurisdiction would stop such prosecution as it would amount to an abuse of the process of the court. This holding has since been consistently followed. See also

Mohammed Gulam

Hussein Fazal & another

v

The Chief Magistrate Court, Nairobi & another

H.C. Misc Application No 367 of 2005, and

Peter George Antony D’costa

v

A.G

& Another

, Petition No. 83 of 2010.

As is always almost the norm whenever in this country we experience catastrophes, natural or man-made, floods, accidents, terror attacks, the relevant public offices are only fired into action by knee-jerk, and impulsive reaction. Actions in such circumstances are taken without regard to the process or ramifications, simply for scape-goating. This case is a good example.

Pursuant to the provisions of the Physical Planning Act and the Council’s own by-laws, the 1

st

respondent on behalf of the Council, inspected the construction and noting, first, that it had not been licensed and seeing its condition, issued an enforcement notice for its demolition so as to avert a calamity. The developer was given seven days from 19

th

April, 2011, the date of the enforcement notice within which to demolish the building. Because the enforcement notice affected other buildings in the City of Nairobi, fifteen people, on behalf of over 100 developers, including the owner of the building in question instituted an action, as explained earlier, contending that they had invested heavily in putting up residential structures which were threatened with demolition by the council and 4 other persons. They sought that the Council and its officers be restrained from evicting them or demolishing their buildings.

The application was placed before

Dulu, J.,

who, due to its urgency certified it as such and went ahead to grant

ex parte

injunction pending the hearing of the application

inter partes.

From the record we cannot say when the

inter partes

hearing was held, but is not in dispute that when the Council insisted on proceeding with the execution of the enforcement notice, it was cited for contempt and on 25

th

November, 2010

Sitati, J.,

in fact ordered for the arrest and committal to civil jail of the Clerk of the Council and four other officers. The orders were apparently stayed and to this day we cannot say whether or not H.C.C.C NO. 155 of 2009 was finally determined. All we know is that while the injunction was still in force the building collapsed.

Enforcement notices are issued under

section 38

of the Physical Planning Act, where developments are being carried out without permission. If within the period specified in the notice, any measures required to be taken have not been taken, the Council may take the action itself and the owner of the development condemned to reimburse any expense reasonably incurred.

The Council, following the law issued the requisite notice whose enforcement was frustrated by the court issuing an injunction. From

Hadkinson

v

Hadkinson

(1952) ALL ER 567 to several local decisions, there can be no debate that it is plain and unqualified obligation of everyone against, or in respect of whom an order has been made by a court of competent jurisdiction, to obey it unless and until it is discharged, as disobedience of an order will, as a general rule, attract contempt proceedings.

Traditionally the basis of application of the equitable remedy of injunction has been

section 63

of the Civil Procedure Act and

Order 40

(previously 39) of the Civil Procedure Rules. Today

Article 23

of the Constitution specifically identifies an order of injunction as one of the reliefs that a court can grant if it is satisfied that a person’s right or fundamental freedom under the bill of rights has been denied, violated or infringed or is threatened. Needless to emphasize, the remedy of temporary injunction is a vital tool intended to preserve the property in a dispute until legal rights and conflicting claims are established, so as to prevent the ends of justice from being defeated.

Order 40

recognizes that a temporary injunction will be sought where a property in dispute is in danger of being wasted, damaged, or alienated, or wrongfully sold in execution of a decree, or where a party threatens or intends to remove or dispose of the property in order to defeat any execution that may ultimately be passed. An injunction may also be applied for to restrain a party from committing a breach of contract or other injury. It is equally settled that a temporary injunction cannot be claimed as a matter of right, neither can it be denied arbitrarily by the court.

Because of its importance and susceptibility to abuse certain guidelines have been developed while considering an application for temporary injunction. The three well- known tests enunciated in

Giella

v

Cassman Brown

(1973) EA 358 are to the effect that a party seeking a temporary injunction has to establish a

prima

facie

case, whether the party seeking injunction will suffer irreparable damage if injunction is denied, and in case of doubt the issue in contention ought to be decided on the scale of a balance of convenience.

In 2010 the Rules Committee being conscious of the susceptibility to abuse of the remedy of temporary injunction introduced in the Civil Procedure Rules certain strictures in

Order 40 rule 4

, intended to obviate those abuses. The first condition is that where the court is satisfied that the object of granting the injunction would be defeated by the delay, it may hear the application

ex parte.

Secondly, an

ex parte

injunction may be granted only once for not more than 14 days, which in turn cannot be extended thereafter, except once by consent of the parties or by order of the court for a period not in excess of 14 days. Thirdly, where an

ex parte

injunction has been granted, the application, pleading and the order must be served on the other side within 3 days of the date of issue of the

ex parte

order and in default, the injunction would automatically lapse. The fourth condition is that, all applications for injunction must be heard expeditiously and in any event within 60 days from the date of filing unless for good reason time is extended by the court. The next requirement is that after

inter partes

hearing the ruling has to be delivered either at once or within 30 days of the conclusion of the hearing. Finally, where a suit in respect of which an interlocutory injunction has been granted is not determined within 12 months from the date of the grant, the injunction is to lapse unless for some sufficient reason.

We have gone into these details to remind the superior courts below and the other trial courts of the importance of adhering to these strictures, which are rarely complied with, with the result that, like in the matter under consideration, a suit filed in 2009 specifically for injunction was still pending determination in 2011 when the tragic accident occurred. It is not for nothing that the rules and general principles governing the grant of interlocutory injunction have been scrupulously developed. It is, for instance, critical for courts to remember the sequence of consideration of the

Giella

(supra) principles, that even where

prima facie

case is established, an injunction will not be granted if the injury or damage to be suffered is not irreparable or is capable of compensation. The timelines for each stage need to be complied with. The deaths of innocent Kenyans could have been averted if the guidelines in

Giella

(supra) and the principles in order 40 were followed. We do not therefore hesitate here to declare that people lost lives and others suffered grave injuries as a direct consequence of the court order.

With respect, we are in agreement with the learned Judge that it was an abuse of prosecutorial powers for the appellant to have charged the 1

st

respondent. His prosecution was clearly in violation of

Article 157 (11).

The duty to enforce building regulations was, at the time vested in Council, whose chief officer was the Clerk.

In any event it was demonstrated that it was the Council that had taken lawful steps of averting a calamity when it was stopped by an injunction and its chief officers threatened with civil jail.

For these reasons we find no substance in this appeal. It is accordingly dismissed with costs.

Dated and delivered at Nairobi this 25

th

day of November 2016

ASIKE-MAKHANDIA

……………….………

JUDGE OF APPEAL

W. OUKO

………………………

JUDGE OF APPEAL

K. M’INOTI

………………..….……

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR