<!-- [if !supportLists]-->1. <!--[endif]-->This is an application dated 23/4/2024 seeking an injunction among other orders. The same is not accompanied by a plaint. Order 3 Rule 1 of the civil procedure rules requires as follows: -
“(1) Every suit shall be instituted by presenting a plaint to the Court, or in such other manner as may be prescribed”
<!-- [if !supportLists]-->2. <!--[endif]-->The application is said to be made under order 40 of the civil procedure rules. Order 40 rule 1 provides as follows: -
“Cases in which temporary injunction may be granted
Where in any suit it is proved by affidavit or otherwise-
<!-- [if !supportLists]-->(a) <!--[endif]-->that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or
<!-- [if !supportLists]-->(b) <!--[endif]-->(b) that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.”
<!-- [if !supportLists]-->3. <!--[endif]-->Interim injunctions are therefore a matter of preserving the subject matter pending determination of the application and thereafter a suit.
<!-- [if !supportLists]-->4. <!--[endif]-->Where the applicant got the idea that an interim injunction can be issued in vacuo is beyond this court. The court only issues orders to preserve a subject matter of a suit. A miscellaneous application such as the one filed herein is not a suit. The court does not have orders to issue in vacuo. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, justice Nyarangi JA, as he then was stated as doth;
“With that I return to the issue of jurisdiction and to the words of Section 20 (2) (m) of the 1981 Act. I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what
I have already said is consistent with authority: “By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics.
<!-- [if !supportLists]-->5. <!--[endif]-->The Applicant has given reasons for not filing suit. Those are the same reasons an injunction cannot issue in absence of breach. The court cannot twist the law though sympathy to issue orders that it has no jurisdiction to issue. The supreme court discussed this aspect in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR, the supreme court stated as doth: -
“This Court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a Court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon Parliament to set the jurisdiction of a Court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”
<!-- [if !supportLists]-->6. <!--[endif]-->The court will therefore assume jurisdiction where it has and eschew jurisdiction where none exists. What is the effect of an order given in vacuo? Such an order is in vain. It is a nullity and amenable to setting aside. In Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169, Lord Denning delivering the opinion of the Privy Council at page 1172 (1) said;
“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
<!-- [if !supportLists]-->7. <!--[endif]-->The effect of this is that the suit has no legs or tail to stand on. It is dead as a dodo on arrival. The court has to save the same from the ignominy of its incompetence.
Determination
<!-- [if !supportLists]-->8. <!--[endif]-->The upshot of the foregoing is that I make the following orders: -
<!-- [if !supportLists]-->a. <!--[endif]-->The Misc application dated 23/4/2024 is struck out.
<!-- [if !supportLists]-->b. <!--[endif]-->The file is closed.
DELIVERED, DATED and SIGNED at MOMBASA on this 25th day of April 2024. Ruling delivered extempore through CTS.