Automated Summary
Key Facts
The five applicants sought leave to file a representative interlocutory application for temporary injunction against the respondents pending a 90-day notice to sue the government. Respondents objected, arguing the court was wrongly moved under Order 1 Rule 8 of the Civil Procedure Code, as it does not apply to interlocutory proceedings. The judge ruled the application incompetent, noting the correct provision (Order XXXII Rule 1) requires a pending suit, which does not exist here. The application was struck out based on this legal misapplication.
Issues
- The first respondent (Attorney General) objected that no cause of action was established against them in the affidavit. Applicants countered that the police force's involvement in the dispute with the second respondent necessitated the Attorney General's inclusion as a necessary party under s. 6(3) of Cap. 5. The judge addressed this objection but ultimately ruled on the second issue to strike the application.
- The court determined whether the applicants properly invoked Order 1 Rule 8 and Section 95 of the Civil Procedure Code to seek leave for a representative interlocutory application for temporary injunction. Respondents argued these provisions do not apply to interlocutory proceedings and that Order XXXII Rule 1 (for pending suits) is the correct provision. The judge agreed the court was wrongly moved, rendering the application incompetent.
Holdings
The court allowed the second objection that the application was wrongly moved under Order 1 Rule 8 of the Civil Procedure Code, as the provision does not accommodate interlocutory applications for temporary injunctions. The application was struck out as a result.
Remedies
The court struck out the application as the wrong legal provision was cited, rendering it incompetent.
Legal Principles
- The court determined that the application was incompetent for failing to cite the relevant legal basis (Order XXXII Rule 1 for pending suits) and for improperly naming the Attorney General as a respondent without a valid cause of action. The ruling clarified that interlocutory injunctions require specific procedural rules and that representative suits must adhere to strict notice requirements under Order 1 Rule 8.
- The court ruled that an application for a representative interlocutory temporary injunction pending a 90-day notice against the government must cite the correct legal provision. The applicants' use of Order 1 Rule 8 of the Civil Procedure Code was deemed inapplicable to interlocutory proceedings, rendering the application incompetent. The court emphasized that moving the court under an incorrect provision invalidates the application, as established in precedents like Sea Saigon Shipping Ltd versus Mohamed Enterprises (T) Ltd.
Precedent Name
- Global Beverages Ltd versus Registrar of Trade and Service Marks and Another
- Sea Saigon Shipping Ltd versus Mohamed Enterprises (T) Ltd
Cited Statute
- Civil Procedure Code, Cap 33 R.E 2019
- Cap. 5 RE 2019 as amended by Act no 1 of 2020
Judge Name
M. P. OPIYO
Passage Text
- Plainly, the above quoted provision gives permission to a person to represent others in a suit but not in interlocutory proceedings like what the applicants are intending to do. It therefore quite clear that, as rightly argued by Mr. Laizer, learned counsel for the 2nd respondent that the reliefs sought by the applicants are not accommodated in the provision so used as quoted above.
- The 2nd objection is therefore allowed, and I will pen off here as there is no need to discuss the 1st point of objection, if the finding on the 2nd objection can dispose the entire application. I proceed strike out this application. It is so ordered.
- It has already been settled that the applicant must cite the relevant provision of law which the court derives the power to hear and determine the application before it, short of that the application becomes incompetent {see Saigon Shipping Ltd versus Mohamed Enterprises (T) Ltd supra}.