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Court of AppealDismissedCivil Appeal No. 210 of 1997

BAHADURALI EBRAHIM SHAMJI vs AL NOOR JAMAL & 2 OTHERS [1998] KECA 255 (KLR)

Court of Appeal of Kenya
31 July 1998
JGJ. E. GicheruAAA. A. AkiwumiPhilip Kiptoo TunoiP. K. Tunoi
5,244 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that ex parte injunctions survive challenges where nothing was deliberately hidden, but parties must argue the real issues instead of raising technical objections.

What this practically means

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Executive summary

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The Court of Appeal (Gicheru, Akiwumi and Tunoi, JJ.A.) dismissed an appeal by Bahadurali Ebrahim Shamji against a ruling of Mbito, J. delivered on 24th February 1997 in H.C.C.C. No. 2386 of 1995. The dispute concerned control of Oxyco Holdings Ltd and its Ugandan subsidiary, Uganda Oxygen Limited, in which the appellant held 55% of the shares but the respondents controlled the board. The respondents had obtained ex parte injunctive orders on 23rd August 1996 restraining the appellant from implementing resolutions passed at a board meeting of 6th November 1995 at which he unilaterally appointed four directors. The appellant argued the orders were obtained by material non-disclosure of two pending undetermined applications, and were a nullity because the Judge failed to record reasons for hearing the matter ex parte under Order 39 rule 3. The Court accepted the settled principles on full and frank disclosure from Princess Polignac and Brink's-MAT, but distinguished them: there was no intentional attempt to mislead the court, as the pending applications were on the court record and had never been heard on merit, so they were not material facts. The Court also held the Judge had adequately recorded his satisfaction that the application was merited and that irreparable injury would otherwise ensue. It deprecated the practice of raising preliminary objections instead of arguing the inter partes application. The appeal was dismissed with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the respondents concealed or failed to disclose material facts (the existence of pending undetermined applications) when obtaining ex parte injunctive orders on 23rd August 1996
  2. 2.Whether the ex parte injunction orders were a nullity because the learned Judge failed to record reasons for hearing the application ex parte as required by Order 39 rule 3 of the Civil Procedure Rules
  3. 3.Whether the preliminary objection raised by the plaintiff was properly overruled

Key legal issues

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01

Duty of full and frank disclosure in ex parte applications

Holding

The duty exists, but its breach must involve material facts; facts already on the court record and pending undetermined applications are not material non-disclosure justifying discharge

Reasoning

The court accepted the principles in Princess Polignac and Brink's-MAT but distinguished them: in those cases there was an intentional attempt to mislead the court. Here the two pending applications were in the court file and the notice of discontinuance clearly showed what was being discontinued. The Judge correctly found the pending applications were not material since they had never been heard on merit.

p. 7
02

Recording of reasons for ex parte hearing under Order 39 rule 3

Holding

The requirement was satisfied where the Judge recorded that he had read the deponed facts, was satisfied the application was merited, and agreed that irreparable injury would otherwise be occasioned

Reasoning

Order 39 rule 3 requires reasons to be recorded before hearing an application ex parte. The Judge stated he agreed irreparable injury would be occasioned if the application was not granted, and recorded that he had read the facts deponed to and was satisfied the application was merited. That was sufficient; further formality was not required.

p. 7
03

Abuse of ex parte procedure and preliminary objections

Holding

A party who obtains ex parte orders should challenge them by arguing the inter partes application rather than raising preliminary objections; the practice of raising such objections to confuse issues is discouraged

Reasoning

The court, citing Newbold P in Mukisa Biscuit, held the plaintiff should have sought to vacate the orders by arguing the application on its merits under Order 39 rule 3 instead of raising preliminary objections, which confused issues and prolonged the trial. Ex parte orders are provisional and would in any event be discharged or varied at the inter partes hearing.

p. 8

Legal principles established

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  • A party applying ex parte must make full and frank disclosure of all material facts known to the applicant, and materiality is decided by the court, not the applicant
  • Non-disclosure of pending undetermined applications that are already on the court record, and which were never heard or determined on merit, does not amount to material non-disclosure warranting discharge of ex parte orders
  • Ex parte orders are by their nature provisional and the judge is bound in any event to discharge or vary them at the inter partes hearing; preliminary objections that confuse issues and prolong the trial are to be discouraged

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JG
majority
AA
majority
Philip Kiptoo Tunoi
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 2386 of 1995
Jurisdiction invoked
First appeal to the Court of Appeal from a ruling of the High Court (statutory appellate jurisdiction under the Constitution and the Appellate Jurisdiction Act; no specific provision quoted in the judgment)

Relief refused

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Setting aside the ex parte injunction orders granted by Mbito, J. on 23rd August 1996 for alleged material non-disclosure

The alleged non-disclosed facts (two pending undetermined applications) were on the court record and were not material to the application; there was no deliberate concealment

p. 7

Nullification of the ex parte orders for failure to record reasons under Order 39 rule 3

The Judge recorded that he was satisfied the application was merited and that irreparable injury would otherwise be occasioned; the complaint was misplaced

p. 7

Costs

The appeal is dismissed with costs to the respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the appeal is dismissed with costs to the respondents.
p. 8Final orders - dismissal of appeal
It is perfectly well settled that a person who makes an ex parte application to the Court - that is to say, in the absence of the person who will be affected by that which the Court is a sked to do - is under an obligation to the Court to make the fullest possible disclosure of all material facts within his knowledge
p. 5Duty of full disclosure in ex parte applications (Warrington LJ, quoted)
In the authorities cited to us there was outright attempt to mislead the Court. The attempts were intentional. In the matter before us, everything was in the Court record and was available to the learned Judge for perusal.
p. 6Distinguishing intentional non-disclosure from facts already on the court record
The plaintiff should not, in the meanwhile, be permitted to steal a march on the respondents by use of myriad ex parte applications. The only sure way of bringing the dispute between the parties to an end is by trial.
p. 7Interim orders must not pre-empt the trial of the main dispute
The granting of ex parte injunction is the exercise of a very extraordinary jurisdiction, and therefore the time at which the plaintiff first had notice of the act complained of will be looked at very carefully in order to prevent an improper order being made against a party in his absence.
p. 7Extraordinary nature of ex parte injunction jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "BAHADURALI EBRAHIM SHAMJI vs AL NOOR JAMAL & 2 OTHERS [1998] KECA 255 (KLR)", Case Analysis (1998). Civil Appeal No. 210 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/255/eng@1998-07-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.