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ELCPartially AllowedSuit filed 20th/21st April 2017 (number not stated in judgment)· [2017] KEELC 272 (KLR)

Kishushe Ranching Co-operative Society Limited v Wanjala Mining Company Limited & another [2017] KEELC 272 (KLR)

Environment and Land Court
18 October 2017
4,167 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled injunction orders because the party seeking them hid existing court orders about the same land dispute.

What this practically means

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Executive summary

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The Plaintiff, Kishushe Ranching Cooperative Society Limited, moved the Environment and Land Court at Mombasa by Notice of Motion dated 20th April 2017 seeking an interlocutory injunction restraining the Defendants from entering L.R. 28984 in Taita Taveta County and from removing iron ore or other excavated material pending hearing of the suit. Ex parte orders were granted on 21st April 2017. Both Defendants filed applications seeking to set aside those orders and to strike out the Plaintiff's suit, contending non-disclosure of material facts, the pendency of HCCC No. 340 of 2008 and ELC No. 260 of 2014 over the same property, and failure to satisfy the Giella conditions. The court framed four issues: sub judice, non-disclosure, the injunction conditions, and costs. It held the suit sub judice, as the same subject matter and essentially the same parties featured in the pending suits. It found the Plaintiff's affidavit disclosed the other suits but not the subsisting orders of 23rd November 2015 in ELC 260 of 2014, which conflicted with the orders obtained ex parte; this was material non-disclosure warranting discharge of the 21st April 2017 orders. On the injunction, the Plaintiff failed to show a prima facie case with high chances of success or irreparable injury, the disputed iron ore being already excavated and quantifiable, and the balance of convenience favoured the Defendants. However, the court declined to strike out the suit as too drastic. The Plaintiff's application was dismissed; the Defendants' applications succeeded only to the extent of setting aside the ex parte orders; each party was to bear its own costs; and the parties were urged to consider consolidating the suit with ELC 260 of 2014. The Plaintiff was granted seven days stay to file a formal application to preserve the status quo.

Key legal issues

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01

Sub judice

Holding

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

Reasoning

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.

p. 5
02

Material non-disclosure on ex parte application

Holding

The ex parte orders of 21/4/2017 were discharged because the Plaintiff failed to disclose the subsisting orders in ELC 260 of 2014

Reasoning

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.

p. 6
03

Conditions for temporary injunction

Holding

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

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The Plaintiff's application dated 20/4/2017 is dismissed
  2. 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. 3.Each party to bear its own costs
  4. 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. 5.Plaintiff granted seven (7) days stay pending the filing of a formal application to preserve the status quo

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3, 3A, 6, 63(c) & (e)
  • Civil Procedure Rules, 2010Order 40 Rules 1, 2, 3, 4 & 5; Order 45 Rules 1 & 2; Order 51 Rules 1, 3 & 15
  • Mining ActSection 37
  • Constitution of Kenya, 2010Article 40

Cases cited (22)

  • Titus Musau Ndome v Cabinet Secretary Ministry of Mining And 2 Others
  • Johnson v Gore Wood & Co.
    (2001) All ER
  • Bradford & Brigley Building Society v Seddon
    (1991) IWLR 1482
  • The Owner of the Motion vessel "Lillian S."
    Civil Appeal No 50/89, unreported
  • R. v. Kensington Income Tax Commissioners ex parte Edmond De Polignac
    (1917) KB 486
  • Uhuru Highway Development Limited v Central Bank of Kenya And 2 Others
    (1995) eKLR
  • Republic v Chairman, District Alcoholic Drinks Registration Committee And 4 Others
    Civil Appeal No 4 of 2013 J/R
  • Macharia Wangui v Attorney General And Another
    HCCC No. 50 of 2013
  • Giella v Cassman Brown And Company Limited
    (1973) EA 358
  • Mrao Limited v First American Bank Limited And 2 Others
  • Vivo Energy Kenya Limited v Maloba Petrol Station Limited And 3 Others
    Civil Appeal No. 21 of 2014
  • Nguruman Limited v JAN Bonde Nielsen And 2 Others
  • Edward Karanja Ragui v Barclays Bank of Kenya Limited
    Nairobi Milimani HCCC 92 of 2002
  • Microsoft Corporation v Mitsuni Computer Garage Limited And Another
    Nairobi Milimani HCCC 810 of 2001
  • East African Foundry Works (K) Limited v Kenya Commercial Bank Limited
    Nairobi Milimani HCCC 1077 of 2002
  • Thiba Mining Hydro Company Limited v Josphat Karu Ndwiga
    Kerugoya HCCC No. 596 of 2013
  • Standard Chartered Bank Limited v Jenipher Atieno Odok
    Kisumu HCCC No. 124 of 2001
  • Fort Hotels Limited t/a Coast Carpark & Amusement Centre v Tourism Finance Corporation And Another
    (2016) eKLR
  • Fleur Investment Limited v Permanent Secretary, Ministry of Roads and 4 Others
    (2012) eKLR
  • John Kisese Nthenge v Toeda Mwasaru And 3 Others
    (2014) eKLR
  • Hadkiston v Hadkiston
    (1952) All ER 567
  • Kenya Universities And Colleges Central Placement Service v Kenya Medical Training College And Another
    C & J R Misc Application No. 291 of 2015
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

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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, "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.