Kishushe Ranching Co-operative Society Limited v Wanjala Mining Company Limited & another [2017] KEELC 272 (KLR)
The bottom line
#A Kenyan court cancelled injunction orders because the party seeking them hid existing court orders about the same land dispute.
What this practically means
#Executive summary
#Key legal issues
#Sub judice
The suit is sub judice as it concerns the same subject matter and essentially the same parties as HCCC No. 340 of 2008 and ELC No. 260 of 2014
Section 6 of the Civil Procedure Act bars trial of a suit where the matter directly and substantially in issue is pending in a previously instituted suit between the same parties. The subject matter of all three suits is L.R. No. 28984 and the parties are essentially the same. Multiplicity of suits obstructs due process and abuses the court's powers.
Material non-disclosure on ex parte application
The ex parte orders of 21/4/2017 were discharged because the Plaintiff failed to disclose the subsisting orders in ELC 260 of 2014
The Plaintiff's affidavit disclosed the existence of the other suits but not the orders of 23/11/2015 still in force in ELC 260 of 2014, which conflicted with the orders obtained. Full and frank disclosure is required; non-disclosure disentitles a party from retaining ex parte orders.
Conditions for temporary injunction
The Plaintiff failed to satisfy the Giella criteria: no prima facie case with high chances of success, no irreparable injury, and balance of convenience favours the Defendants
There is a dispute over ownership of the excavated iron ore, said to have been excavated under a valid lease and mining licence. The disputed material is already excavated and quantifiable, so damages are an adequate remedy; the Defendants stand to lose if the iron ore goes to waste.
Legal principles established
#- An order made by a court of competent jurisdiction must be obeyed until discharged, and existing orders must be disclosed when seeking ex parte relief
- A party obtaining ex parte relief assumes a duty of full and frank disclosure and must support the order at the inter partes hearing on the same grounds
- Orders obtained through material non-disclosure cannot stand and must be discharged
Court orders
#- 1.The Plaintiff's application dated 20/4/2017 is dismissed
- 2.The 1st & 2nd Defendants' applications dated 28/4/2017 and 4/5/2017 are allowed only to the extent that the ex parte orders granted on 21/4/2017 are set aside and/or discharged
- 3.Each party to bear its own costs
- 4.Parties urged to consider moving the court to consolidate this suit with ELC 260 of 2014 or, in the alternative, fix the application dated 12/7/2017 for hearing
- 5.Plaintiff granted seven (7) days stay pending the filing of a formal application to preserve the status quo
- Jurisdiction invoked
- Sections 1A, 3A and 63(c) & (e) of the Civil Procedure Act and Order 40, Order 45 and Order 51 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kishushe Ranching Co-operative Society Limited v Wanjala Mining Company Limited & another [2017] KEELC 272 (KLR)", Case Analysis (2017). Suit filed 20th/21st April 2017 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/272/eng@2017-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.