Yurub Investment Limited & 1 other v Diamond Trust Bank Limited & 1 other
The bottom line
#The Court of Appeal refused to stop the sale of charged land because the borrowers hid key facts from the court and had no arguable appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants satisfied the twin principles for relief under rule 5(2)(b)
The application fails at the first limb; no arguable point was discerned, so the nugatory limb need not be considered
The applicants admitted charging the suit property as security for a loan that went unpaid. Conditional orders of the High Court, including payment into court, were not complied with, and a similar application in the Court of Appeal (Laburnam Courts Limited v Diamond Trust Bank) had been dismissed. These material facts, disclosed only by the respondent, disentitled the applicants from equitable relief.
Non-disclosure and clean hands as bars to equitable relief
Applicants failed to disclose material facts concerning prior High Court and Court of Appeal proceedings, so the court declined to exercise its discretion in their favour
The respondent's replying affidavit showed prior conditional orders, the applicants' non-compliance, and a similar dismissed application in the same court. Relying on Kawaljeet Singh Zekhi v Peter Wainaina Kamau, the court held that a party seeking an equitable remedy must come with clean hands; suppression of material facts defeated the Motion.
Legal principles established
#- An applicant for an injunction or stay under rule 5(2)(b) must demonstrate that the intended appeal is arguable and that it would be rendered nugatory if stay is not granted
- A party seeking an equitable remedy must come to court with clean hands and make full and frank disclosure of material facts
Court orders
#- 1.The Motion fails and is dismissed with costs to the 1st respondent
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 139 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules and Article 159 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yurub Investment Limited & 1 other v Diamond Trust Bank Limited & 1 other", Case Analysis (2021). Civil Application No. EO17 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/568/eng@2021-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.