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ELCDismissedPetition No. 6 of 2015 (consolidated with Petition No. 7 of 2015)· [2015] KEELC 252 (KLR)

Spree Club Limited v Medical Officer of Health Uasin Government & 2 others [2015] KEELC 252 (KLR)

High Court of Kenya
18 September 2015
2,751 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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The High Court in Eldoret kept interim orders protecting a business from county closure because the county could not prove anything was hidden from the court.

What this practically means

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Executive summary

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This is a ruling of the High Court at Eldoret (Antony Ombwayo J) on a Notice of Motion dated 1 July 2015 by the Respondents, led by the County Government of Uasin Gishu, seeking to vary, set aside or vacate interim orders restraining the County Government from closing down the petitioners' premises in consolidated Petitions Nos. 6 and 7 of 2015. The Applicants argued the orders were obtained through material non-disclosure: the petitioner was allegedly operating in a basement without the written permission of the Medical Officer of Health as required by section 151 of the Public Health Act, and had no valid 2015 Single Business Permit, relying on Hon. Azangalala's decision in Julius W. Mwangi Njunu v H.F.C.K. The petitioner, through Charles Kamau Kariuki's affidavit, denied non-disclosure, contended that the basement issue is the contested subject of the main petition, and showed that the 2015 licence had been applied for and paid for and that the premises had been inspected and cleared by the respondents. The court restated the principles governing ex parte disclosure from CMC Holdings v Nzioki, Ruaha Concrete v Paramount Universal Bank and Bahadurali Ebrahim Shamji v Al Noor Jamal. It held that the Applicants failed to identify any specific material fact that had been suppressed - the court granting the orders knew the 2015 licence was pending - and that the discretion to discharge ex parte orders must be exercised judiciously. The application was dismissed with costs.

Key legal issues

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01

Whether the interim orders were obtained by material non-disclosure

Holding

The Applicants failed to show any specific material fact that was not disclosed; the petitioner had disclosed that the 2015 licence had been applied for but not issued.

Reasoning

The court rehearsed the principles on non-disclosure from CMC Holdings, Ruaha Concrete and Bahadurali Ebrahim Shamji. The Applicants alleged non-disclosure of basement operation and lack of a valid 2015 permit, but the court noted the basement issue is the very subject of the main petition, and the court that granted the orders knew the 2015 licence was pending. Without specific identification of suppressed material facts, the discretion to discharge could not be exercised against the petitioner.

02

Exercise of discretion in setting aside ex parte orders

Holding

The discretion exists but must be exercised judiciously and to prevent injustice; no injustice was shown here.

Reasoning

Following CMC Holdings Ltd v Nzioki, the court held the discretion must be exercised upon reasons and meant to ensure a litigant does not suffer injustice. The Applicants relied on allegations of illegality (basement operation, expired permit) which are contested matters reserved for the main petition. The court found the applicant had been cleared to operate by the very respondents pursuant to an inspection report, and the main issues remain pending for trial.

p. 3

Legal principles established

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  • A court has discretion to set aside interim orders granted ex parte, but that discretion must be exercised judiciously and upon reasons.
  • An ex parte applicant owes a duty of full and fair disclosure of all material facts, and the penalty for breach is deprivation of any advantage obtained.
  • Materiality of non-disclosure is decided by the court, not by the applicant, and not every omission leads to automatic discharge of an ex parte order.

Court orders

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  1. 1.The Notice of Motion dated 1 July 2015 seeking to set aside the interim orders is dismissed
  2. 2.Costs of the application to the Petitioner/Respondent

Authorities

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Legislation

  • Public Health Actsections 117, 118, 151
  • Public Health Act Cap 242 Laws of Kenya

Cases cited (4)

  • CMC Holdings Limited vs. Nzioki
    [2004] 1 KLR 173
  • Julius W. Mwangi Njunu V H.F.C.K and another
    Milimani High Court Civil Case No. 504 of 2005
  • Ruaha Concrete Co. Ltd et al versus Paramount Universal Bank Ltd et al
    HCCC No. 430 of 2002
  • Bahadurali Ebrahim Shamji vs. Al Noor Jamal & 2 Others
    Civil Appeal No. 210 of 1997
Jurisdiction invoked
Original constitutional/judicial review jurisdiction over the petition; notice of motion dated 1 July 2015 to vary, set aside or vacate interim orders

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, "Spree Club Limited v Medical Officer of Health Uasin Government & 2 others [2015] KEELC 252 (KLR)", Case Analysis (2015). Petition No. 6 of 2015 (consolidated with Petition No. 7 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/252/eng@2015-09-18

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