Automated Summary
Key Facts
Sawand Care Products Limited sought to vary conditions of a 2019 temporary injunction against Nestle Kenya Limited's liquidation petition. The court ordered a Kshs 10,000,000 payment within 45 days and a joint auditor appointment within 14 days, which the plaintiff failed to meet. The plaintiff later requested monthly instalments and independent auditors, but the defendant argued the injunction lapsed on January 13, 2020. The court dismissed the 2020 application, finding no compliance with prior conditions and no valid basis for variation.
Transaction Type
Distributorship Agreement between Sawand Care Products Limited and Nestle Kenya Limited
Issues
- The court was required to assess whether the temporary injunction granted on November 29, 2019, lapsed due to the plaintiff's failure to comply with the conditions of paying Kshs 10,000,000 within 45 days and appointing a joint auditor within 14 days, which deadlines expired on January 13, 2020.
- The court considered whether the plaintiff's application to vary the payment conditions from a lump sum to monthly installments and to replace the joint auditor with independent auditors was justified, given the plaintiff's alleged financial constraints and the defendant's opposition based on delay and estoppel.
Holdings
The court held that the temporary injunction issued on November 29, 2019, lapsed on January 13, 2020, due to the plaintiff's non-compliance with the conditions (payment of Kshs 10,000,000.00 within 45 days and appointment of a joint auditor within 14 days). The court dismissed the plaintiff's March 3, 2020, application to vary these conditions as it lacked merit and was filed after the conditions had expired. The ruling emphasized that the conditions were clear and unambiguous, and the failure to meet them rendered the injunction inoperable.
Remedies
- The court dismissed the plaintiff's application dated March 3, 2020, seeking to vary the conditions of the temporary injunction granted on November 29, 2019. The application was found to lack merit, with the court determining that the temporary injunction had already lapsed due to the plaintiff's non-compliance with the original conditions. The court ruled that the plaintiff failed to meet the 45-day deadline for paying Kshs 10,000,000/= and the 14-day deadline for appointing a joint auditor, rendering the injunction unenforceable. The dismissal included an order for the plaintiff to bear the costs of the application.
- The temporary injunction issued on November 29, 2019, to restrain the defendant from instituting a liquidation petition against the plaintiff was found to have lapsed. The court concluded that the plaintiff failed to comply with the conditions set for maintaining the injunction, specifically the payment of Kshs 10,000,000/= within 45 days (by January 13, 2020) and the appointment of a joint auditor within 14 days. The plaintiff's subsequent attempts to vary these conditions were deemed untimely and not amenable to judicial review.
Legal Principles
- The defendant argued the plaintiff was estopped from relying on past financial facilities (dating back to 2012) to justify its current inability to comply with the court's conditions, as the plaintiff had previously represented its ability to settle debts.
- The court held that the conditions for the interim injunction granted on November 29, 2019, automatically lapsed upon non-compliance with the specified timelines (45 days to pay Kshs 10,000,000 and 14 days to appoint a joint auditor), rendering the injunction unenforceable for variation after January 13, 2020.
Cited Statute
- Civil Procedure Rules
- Civil Procedure Act
Judge Name
Olga Sewe
Passage Text
- The Court be pleased to set aside and/or vary the condition requiring the plaintiff to pay Kshs 10,000,000/= within forty-five (45) days and substitute it with an order allowing the plaintiff to liquidate the sum in monthly instalments of Kshs 250,000/= until the ascertained debt is paid in full.
- Consequently, it is my finding that the temporary injunction issued by the court, having lapsed on the January 13, 2020 due to non-compliance is therefore not amenable to variation. That being my view, the application dated March 3, 2020 is devoid of merit and is dismissed with costs.
- The ruling dated November 29, 2019 is explicit that the court granted a temporary injunction but on conditions that were to be complied with within set timelines. The first condition required that Kshs 10,000,000.00/= be paid within 45 days; and the second condition was that a joint auditor be appointed within 14 days. To date, the plaintiff is yet to comply with any of the said orders.
Damages / Relief Type
Injunction to restrain the defendant from instituting a liquidation petition, with conditions requiring payment of Kshs 10,000,000 within 45 days and appointment of a joint auditor within 14 days.