Samuel G. Njoroge (Suing as the legal representative of the Estate of Late Geofrey Giukaru Njoroge)(deceased) v Wanje Holdings Limited [2017] KEELC 18 (KLR)
The bottom line
#The Environment and Land Court in Mombasa dismissed a landowner's bid to block development of a Mombasa plot because he hid earlier court cases from the judge.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case under the Giella test
The plaintiff failed to establish a prima facie case with probability of success; the defendant lawfully acquired the suit property from National Bank of Kenya under a floating debenture and is the registered proprietor
The court applied the Giella v Cassman Brown criteria. The defendant demonstrated lawful acquisition of the suit property from the chargee bank and registration as proprietor. Prior litigation in ELC No. 168 of 2015, in which the plaintiff sought similar orders and was dismissed, undermined the plaintiff's claim. The court was therefore not satisfied a prima facie case existed.
Duty of full and candid disclosure in equitable applications
The plaintiff was guilty of material non-disclosure by deponing that there had never been proceedings between the parties over the suit property, when the issues had been determined in ELC No. 168 of 2015
Because an injunction is an equitable remedy, the applicant must make full disclosure of all material facts. The ruling in ELC No. 168 of 2015 showed the applicant had sought to be enjoined, a mandatory injunction, stay of execution and setting aside of judgment, and had been dismissed. This contradicted the supporting affidavit, disentitling the plaintiff to equitable relief.
Legal principles established
#- An applicant for an interlocutory injunction must come to court with clean hands and make full disclosure of all material facts
- Where the value of suit property can be ascertained, loss is compensable by damages and irreparable harm is not established
Court orders
#- 1.The plaintiff's Notice of Motion dated 26th October 2016 is dismissed
- 2.Costs of the application to the respondent
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 40 Rules 1(a), 3(3) and (4) and Order 50 Rules (1) and (3) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel G. Njoroge (Suing as the legal representative of the Estate of Late Geofrey Giukaru Njoroge)(deceased) v Wanje Holdings Limited [2017] KEELC 18 (KLR)", Case Analysis (2017). Notice of Motion dated 26th October 2016 (in the pending suit over parcel No. MN/VI/2360). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/18/eng@2017-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.