Wanje Holdings Limited v National Bank Of Kenya Limited (Environment & Land Case 168 of 2015) [2016] KEELC 1303 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether HCCC No. 265 of 1996 had abated, defeating consolidation
The suit had abated as the deceased died over a year earlier and no substitution or revival had commenced
The grant annexed by the applicants showed their father died on 19th December 2014, more than a year before the application. No document showed substitution or revival of the earlier suit had begun. The plaintiff's submission that the suit abated under the Civil Procedure Act was accepted, and consolidation was refused on that basis.
Whether the draft defence and counter-claim raised triable issues justifying setting aside the judgment and leave to defend
No triable issues were raised against the plaintiff; any issues lay between the applicants and the defendant
The applicants acknowledged the defendant's appointment as receiver/manager, so denying a charge was not triable against the plaintiff. Whether the plaintiff paid Kshs 35,000,000 was a question between plaintiff and defendant. The adverse possession claim was undermined by the 1996 suit for vacant possession which interrupted time. The applicants remain free to sue the defendant.
Whether a mandatory injunction could issue to reinstate the applicants
It could not, as mandatory orders are granted in very clear cases and the applicants' case was unclear and unsupported by a meritorious defence
The court noted such orders are reserved for clear cases. The applicants' own pleadings were unclear on whether they were completely evicted, stating only their goods were thrown out. Since the draft defence was found to lack merit, the mandatory injunction had no foundation and was refused.
Legal principles established
#- In setting aside a judgment the court's discretion is wide but must be exercised on terms that are just, considering defence on merits, prejudice and explanation for delay
- Mandatory injunctions are granted only in clear cases
- A court cannot take judicial notice of a fact capable of being established but which a party neglects to prove
Court orders
#- 1.The amended notice of motion dated 17th December 2015 is dismissed
- 2.Each party to bear their respective costs
- Jurisdiction invoked
- Sections 1, 1A, 1B, 3, 3A of the Civil Procedure Act and Order 1 Rule 10(2), Order 10 rule 11, Order 22 rule 1 and Order 36 rules 7 and 10 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Wanje Holdings Limited v National Bank Of Kenya Limited (Environment & Land Case 168 of 2015) [2016] KEELC 1303 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1303/eng@2016-08-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.