IN
THE HIGH COURT OF MALAWI

LILONGWE
REGISTRY

CIVIL
CAUSE NO 858 OF 2004

BETWEEN
:

HENRY
MADULA BANDA…………………1^ST
PLAINTIFF

ZELE
MADULA ………………………………2^ND
PLAINTIFF

LOVEMORE
MADULA………………………3^RD
PLAINTIFF

-and-

MRS
TANYAZE KATUNDU ………………….DEFENDANT

CORAM : HON.
JUSTICE A.K.C. NYIRENDA

Chilenga;
Counsel for Plaintiff

Theu;
Counsel for the Defendant

R
U L I N G

NYIRENDA,
J.

This
is an application by the defendant seeking to have an injunction
obtained by the plaintiffs set aside for want of prosecution.
The
application is said to be made under the court’s inherent
jurisdiction.

The
plaintiffs oppose the application for two reasons. The first is that
the application is misconceived because all applications
to do with
injunctions are governed by Order 29 of the Rules of the Supreme
Court. This one is not and therefore that it is unknown
at law.
Secondly the plaintiffs contend that an inter-parte application for
an injunction is already before court although indeed
there has been
some delay in executing it.

To
me the situation in this case is pretty straight forward and did not
require all that has been done and said in the present
application.
The answer to the situation here lies in the brief history of the
matter.

The
plaintiffs obtained an exparte interlocutory injunction on a
certificate of urgency of the matter on December 31, 2004. The

Order of the court was that the application was granted subject to
further proceedings within 14 days from the date thereof. On
26^th
January 2005 the plaintiffs filed interparte summons for an
injunction. Obviously that was way out of the 14 days. The
application
was nevertheless called for hearing on 8^th
February 2005. Plaintiff’s counsel is on record seeking an
adjournment because the defendant had not been served. The
adjournment
was granted. Since that time the plaintiffs sat back and
has only been jolted by the defendant’s application to have the
injunction
set aside by the present application.

From
this brief history it is apparent that the defendant need not have
made this application. The order of injunction went out
of life 14
days after it was granted. No further order having been obtained or
sought within the prescribed time the injunction
lapsed on its own
and any of the parties was entitled to take it that there was no
injunction anymore.

All
I can say is that when the plaintiff filed the inter-parte
application for an injunction on the 26^th
of January 2005 that application was a new and fresh application and
was not premised on the earlier order which was no more.

Unfortunately for the plaintiffs the fresh application has not been
pursued with due diligence.

In
a way I can understand why the defendant had difficulties in making
the present application. Because there is no injunction
there could
be no application to dissolve one. To me this application was
basically to prompt the court and to draw to the attention
of the
plaintiff’s that their injunction lapsed. Like I said earlier such
was not even necessary. The injunction obtained
herein lapsed and
remains dead.

The
respondent seeks an order of inquiry into damages. There is nothing
before me to suggest that the injunction was irregularly
obtained or
obtained on suppression of facts or misrepresentation. I therefore
make no order in that regard.

The
plaintiffs obtained an order of injunction and literally slept on it.
The matter has surfaced on account of the defendant
bringing it to
the court’s attention. I make an order for costs of the present
application in favour of the respondent.

MADE
in Chambers at Lilongwe this 14^th
day of February 2006.

A.K.C.
Nyirenda

J
U D G
E