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ELCPartially AllowedNot stated in the judgment excerpt (Malindi suit, filed 9th November 2012)· [2013] KEELC 16 (KLR)

Hussein Ali & 4 others v Commissioner of Lands, Land Registrar & 7 others [2013] KEELC 16 (KLR)

Environment and Land Court
19 December 2013
OAO. A. Angote
1,640 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court cancelled ex parte injunctions because the applicants hid an earlier case over the same property — honesty with the court is non-negotiable.

What this practically means

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Executive summary

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The 5th, 6th and 7th Defendants applied on 29th August 2013 to set aside an ex parte Ruling and the injunctive orders issued in this Malindi land suit over L.R. No. 26781, registered in the name of the 7th Defendant. They argued that the Plaintiffs had failed to disclose to the court the existence and terms of Malindi HCCC No. 100 of 2007, a pending suit over the same property involving the same parties and carrying a subsisting injunction in favour of the 6th Defendant. The 1st Plaintiff, speaking for the Koreni Community, opposed, asserting prior service of the Defendants and alleging the Malindi suit was stage-managed, proposing consolidation instead. The court framed two issues: material non-disclosure and service. On the first, it found that when the suit was filed on 9th November 2012 the Malindi suit was pending; the Plaint falsely averred no prior proceedings existed; and counsel seeking ex parte orders never mentioned the Malindi suit or its injunction. Citing the duty of full and frank disclosure in ex parte applications, the court held that a party guilty of material non-disclosure is dis-entitled to the equitable remedy of injunction and that the ex parte orders issued were in direct conflict with the subsisting Malindi orders. It set aside its Ruling and Orders and allowed the Defendants' application as prayed, declining to determine the service question as unnecessary. The judgment was delivered at Malindi on 19th December 2013 by Angote J.

Key legal issues

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01

Material non-disclosure in obtaining ex parte injunctive orders

Holding

The Plaintiffs failed to disclose the existence of Malindi HCCC No. 100 of 2007 and the subsisting injunction therein, both in the Plaint and at the ex parte stage; the ex parte orders were therefore set aside

Reasoning

The court found the same subject property and overlapping parties featured in Malindi HCCC No. 100 of 2007, which was pending when this suit was filed and in which injunctive orders existed in favour of the 6th Defendant. The Plaint falsely averred no previous proceedings existed, and counsel did not disclose the pending suit when seeking ex parte orders. The court held it would not have granted the injunction had it known, and applied the duty of full and frank disclosure to discharge its own orders.

p. 4

Legal principles established

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  • A party making an ex parte application owes the court a duty of full and frank disclosure of all material facts, and on failure of disclosure will be deprived of any advantage obtained from the proceedings
  • A party guilty of material non-disclosure is dis-entitled to the equitable remedy of injunction

Court orders

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  1. 1.Set aside the Ruling and Orders of 26th July 2013 issued ex parte in favour of the Plaintiffs
  2. 2.Allowed the 5th, 6th and 7th Defendants' Application dated 29th August 2013 as prayed
Jurisdiction invoked
Inherent power of the court to set aside its own ex parte orders; not expressly stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Hussein Ali & 4 others v Commissioner of Lands, Land Registrar & 7 others [2013] KEELC 16 (KLR)", Case Analysis (2013). Not stated in the judgment excerpt (Malindi suit, filed 9th November 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/16/eng@2013-12-19

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