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ELCAllowedNot stated in judgment (Naivasha/Mwichiringi land suit, Nakuru)· [2015] KEELC 857 (KLR)

Ndungu & another v Omani (Environment & Land Case 208 of 2014) [2015] KEELC 857 (KLR)

Environment and Land Court
3 February 2015
MSMunyao Sila
1,540 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled an injunction because the landowners hid earlier court cases over the same land from the judge.

What this practically means

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Executive summary

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The defendant applied under Order 40 Rule 7 of the Civil Procedure Rules to discharge, vary or set aside an injunction issued on 29 September 2014 restraining him from interfering with parcels sub-divided from Naivasha/Mwichiringi Block 2/109. The injunction had been granted unopposed after the defendant's counsel failed to appear at the inter partes hearing. The defendant argued he was denied a hearing, that his counsel's lateness should not prejudice him, and that the plaintiffs had not disclosed two prior suits over the same land: Nakuru HCCC No. 87 of 2010 and Nakuru HCCC No. 69 of 2010 (OS), which had been consolidated. The plaintiffs opposed, contending one suit had abated on the death of Hannah Wanjiku Omani and that a substitution application had been filed. The court held that Order 40 Rule 7 does not ordinarily aid a party who, though served, failed to attend by design or neglect, unless exceptional circumstances exist - notably non-disclosure of material facts. Although counsel's lateness was a weak excuse, the plaintiffs' failure to disclose the two prior suits, which made this suit prima facie res judicata, amounted to substantial non-disclosure leading to a miscarriage of justice. The application was allowed: the injunction was set aside, the status quo prevailing before the suit was to be maintained, an order of inhibition was placed on the register of the parcels, and costs were awarded to the applicant.

Key legal issues

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01

Discharge of an injunction under Order 40 Rule 7 on grounds of non-disclosure

Holding

The injunction granted on 29 September 2014 was set aside because of substantial non-disclosure of material facts (previous suits) which led to a miscarriage of justice, despite the applicant's weak excuse of counsel's lateness

Reasoning

The court held Order 40 Rule 7 does not aid a party who, served, failed to appear through design or neglect; exceptional circumstances are required. Non-disclosure of material facts can prick the conscience of the court. Though counsel's lateness was a weak excuse, the plaintiffs' failure to disclose the two prior suits over the same land was substantial non-disclosure rendering the suit prima facie res judicata and causing injustice.

p. 3
02

Res judicata arising from prior suits

Holding

Prima facie, the present suit is res judicata given the consolidated prior suits over the same parcel and sub-divisions

Reasoning

The court perused Nakuru HCCC No. 69 of 2010 (OS) (adverse possession claim by Hannah Wanjiku Omani) and Nakuru HCCC No. 87 of 2010 (filed by the same plaintiffs against Hannah Wanjiku Omani and Njogu Omani), which were consolidated. A substitution application was on file despite Omani's death. The existence of these suits over the same subject matter should have been disclosed.

p. 3

Legal principles established

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  • Order 40 Rule 7 is not available to aid a party who, by design or neglect, failed to attend court, except in exceptional circumstances such as non-disclosure of material facts
  • Non-disclosure of existing suits over the same subject matter is a material non-disclosure that can lead to setting aside an injunction

Court orders

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  1. 1.The application for injunction issued on 29 September 2014 be and is hereby set aside
  2. 2.In place thereof, the status quo prevailing before the filing of the suit be maintained
  3. 3.An order of inhibition issued, inhibiting registration of any disposition in the register of the land parcels Naivasha/Mwichiringi Block 2/1052 - 1170
  4. 4.Costs of the application to the applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 7

Cases cited (2)

  • Dominic W. Nguku & Walter N. Mbugua v Hannah Wanjiku Omani & Njogu Omani, Nakuru HCCC No. 87 of 2010
  • Hannah Wanjiku Omani v Dominic Waronga Nguku & Walter N. Mbugua, Nakuru HCCC No. 69 of 2010 (OS)
Jurisdiction invoked
Order 40 Rule 7 of the Civil Procedure Rules

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, "Ndungu & another v Omani (Environment & Land Case 208 of 2014) [2015] KEELC 857 (KLR)", Case Analysis (2015). Not stated in judgment (Naivasha/Mwichiringi land suit, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/857/eng@2015-02-03

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