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ELCDismissed· [2016] KEELC 1303 (KLR)

Wanje Holdings Limited v National Bank Of Kenya Limited (Environment & Land Case 168 of 2015) [2016] KEELC 1303 (KLR)

High Court of Kenya at Mombasa
15 August 2016
1,739 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The interested parties, Samuel G. Njoroge and Joseph M. Njoroge, suing as legal representatives of the estate of Geoffrey Gikaru Njoroge (deceased), brought an amended application dated 17th December 2015 seeking to be enjoined in the suit, consolidation with HCCC No. 265 of 1996, setting aside of the judgment entered on 2nd November 2015, unconditional leave to defend, stay of execution of warrants of eviction issued to Ndutimu Auctioneers, and a mandatory injunction reinstating them into the suit property LR No. MN/VI/2360. They claimed their father purchased the property through the KENATCO housing scheme in the 1970s and that they had lived there since then, alleging collusion between plaintiff and defendant to steal a match. The plaintiff opposed, stating it purchased the property for Kshs 35,000,000 in 2014, that the deceased had failed to prove his interest, and that HCCC No. 265 of 1996 had abated. The court declined consolidation, holding the earlier suit had abated after the deceased's death on 19th December 2014 with no substitution commenced. On setting aside, the court applied the Patel v EA Cargo Handling test, found no explanation for delay was needed as the applicants were not served, but held the draft defence and counter-claim raised no triable issues against the plaintiff; adverse possession was defeated by the 1996 suit interrupting time. The mandatory injunction was refused as it was not a clear case. The application was dismissed with each party bearing their own respective costs.

Key legal issues

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01

Whether HCCC No. 265 of 1996 had abated, defeating consolidation

Holding

The suit had abated as the deceased died over a year earlier and no substitution or revival had commenced

Reasoning

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.

p. 3
02

Whether the draft defence and counter-claim raised triable issues justifying setting aside the judgment and leave to defend

Holding

No triable issues were raised against the plaintiff; any issues lay between the applicants and the defendant

Reasoning

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.

p. 4
03

Whether a mandatory injunction could issue to reinstate the applicants

Holding

It could not, as mandatory orders are granted in very clear cases and the applicants' case was unclear and unsupported by a meritorious defence

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The amended notice of motion dated 17th December 2015 is dismissed
  2. 2.Each party to bear their respective costs

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 1B, 3, 3A
  • Civil Procedure RulesOrder 1 Rule 10(2), Order 10 rule 11, Order 22 rule 1, Order 36 rules 7 and 10

Cases cited (1)

  • Patel vs E A Cargo Handling Services Ltd
    (1974) E A 75
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.