Shimmers Plaza Ltd & another v National Bank of Kenya & 3 others [2014] KEELC 50 (KLR)
The bottom line
#Kenya's Environment and Land Court ordered Shimmers Plaza to hand over its building to the buyer, Cape Suppliers, and threw out its remaining challenges.
What this practically means
#Executive summary
#Key legal issues
#Review of interlocutory orders
No sufficient ground for review was established under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules; the orders were made inter partes after hearing all parties
The court perused the record and found the orders of Gitumbi J. of 29th November 2013 and the status quo orders of 3rd March 2014 were made after all parties had argued the applications and after canvassing the very misrepresentation allegations now raised. The main determinant of the orders was the Court of Appeal decision, which no party had shown had been reviewed or overturned.
Jurisdiction over alleged contempt of the Court of Appeal status quo orders
The ELC has no jurisdiction to determine whether Court of Appeal orders were disobeyed; contempt lies before the court that issued the orders, and the matter was already sub judice before the Court of Appeal
The status quo orders alleged to have been violated were granted by the Court of Appeal. Under the Judicature Act and the authority in Judicial Service Commission v Speaker of the National Assembly, contempt of such orders falls to that court. Shimmers Plaza had already filed contempt proceedings in the Court of Appeal, barring this Court under the sub judice rule.
Temporary and mandatory injunctions sought by Shimmers Plaza Ltd
Shimmers Plaza Ltd failed to establish a prima facie case and its applications were dismissed
Shimmers Plaza's claim rested solely on the allegation that the sale breached the Court of Appeal status quo orders, an issue outside this Court's jurisdiction, and the Court of Appeal had dismissed its appeal and allowed the sale. Without a prima facie case, no temporary injunction could issue, and no special circumstances justified a mandatory injunction.
Injunctions sought by Cape Suppliers Ltd
Cape Suppliers Ltd demonstrated a prima facie case as registered owner and was entitled to temporary and mandatory injunctions for possession
Cape Suppliers proved registration as owner and a loan facility repayable from the property, showing irreparable harm. As registered owner it was entitled to possession, and Shimmers Plaza's only remedy in respect of any irregularity in the sale was damages under section 99 of the Land Act, making this a clear case for a mandatory injunction.
Res judicata
Prayers by Shimmers Plaza Ltd against National Bank of Kenya Ltd similar to those dismissed by Kimondo J. and the Court of Appeal were res judicata
Following Kimondo J.'s ruling of 27th January 2012 and the Court of Appeal judgment of 20th December 2013 dismissing Shimmers Plaza's appeal against that ruling, the court declined to entertain similar prayers restraining National Bank of Kenya from dealing with the suit property, as these had already been determined.
Legal principles established
#- The power to punish for contempt can only be exercised by the court which granted the orders alleged to have been disobeyed
- A purchaser of charged land sold in exercise of a statutory power of sale is protected and the chargor's remedy is damages under section 99 of the Land Act
Court orders
#- 1.Shimmers Plaza Ltd to forthwith give possession of the property on Title No. I.R 55525, L.R 1870/IX/1281 (Shimmers Plaza) to Cape Suppliers Ltd pending hearing and determination of the consolidated suits or until further orders
- 2.Shimmers Plaza Ltd restrained from interfering with Cape Suppliers Ltd's occupation and possession of the suit property pending hearing and determination of the consolidated suits or until further orders
- 3.Prayers in Shimmers Plaza Ltd's Notices of Motion dated 19th November 2013 and 9th December 2013 in ELC 1401 of 2013 and 4th March 2014 in ELC 43 of 2014 denied
- 4.Officer in Charge of Parklands Police Station to assist in enforcement of and ensure compliance with the orders
- 5.Costs of the various Notices of Motion to be in the cause
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution of Kenya (Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shimmers Plaza Ltd & another v National Bank of Kenya & 3 others [2014] KEELC 50 (KLR)", Case Analysis (2014). ELC 1401 of 2013 (consolidated with ELC 43 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/50/eng@2014-12-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.