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ELCPartially Allowed· [2017] KEELC 3678 (KLR)

Catherine Kanini Kioko & another v Ruweya Ali Mwinyi & 2 others [2017] KEELC 3678 (KLR)

Environment and Land Court (not expressly named in the judgment text)
24 January 2017
1,478 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The 3rd defendant, the chargee bank, applied to set aside injunction orders issued on 28th June 2016 restraining the defendants from selling or interfering with plot nos. 9071/11/MN and 9086/11/MN, and further sought striking out of the plaintiffs' suit against itself and the 2nd defendant (an auctioneer). The application was opposed by the 1st plaintiff, who denied non-disclosure and contended the application was an incompetent omnibus and that the applicant failed to exercise due diligence when securing the charge. The court found that the plaint itself pleaded that the 1st defendant had charged the suit premises to secure bank loans, so the plaintiffs knew of the chargee's interest from the outset but chose not to enjoin the 3rd defendant; this amounted to material non-disclosure. Since the 3rd defendant was condemned unheard, it could not appeal and was entitled to seek setting aside of the orders, which were set aside ex debito justitiae. On striking out, the court held no cause of action was disclosed against the 2nd defendant, an auctioneer acting as agent of a disclosed principal (the bank, which was before the court), and struck out the suit against it with costs. Striking out the suit against the 3rd defendant was held premature, applying the principle that a suit should only be struck out where it cannot be cured by amendment; the plaintiffs were to amend their plaint. The omnibus objection was dismissed. The application was allowed partially: prayer 3 (setting aside the injunction) allowed in its entirety, prayer 4 allowed only against the 2nd defendant, with costs of the application and the striking out awarded to the 3rd defendant/applicant.

Key legal issues

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01

Setting aside injunction orders obtained without notice to the chargee

Holding

The injunction orders of 28th June 2016 are set aside in their entirety because the plaintiffs knew of the 3rd defendant's charge but failed to enjoin it, amounting to material non-disclosure, and the 3rd defendant was condemned unheard.

Reasoning

The plaint itself pleaded that the 1st defendant had charged the suit premises to secure bank loans, so the plaintiffs knew of the chargee's interest from the outset yet did not join it. The advertisement annexed to the plaintiffs' own affidavit showed the auctioneer acted on the chargee's instructions. Since the applicant was never afforded a chance to oppose the injunction, it could not appeal the ruling and was entitled to come to court to have the orders set aside ex debito justitiae.

p. 2
02

Striking out the suit against the 2nd defendant (auctioneer)

Holding

The suit against the 2nd defendant is struck out because no cause of action is disclosed against it as an agent of a disclosed principal.

Reasoning

The pleading and replying affidavit nowhere blamed the 2nd defendant beyond alleging it might dispose of the suit properties. It acted on the bank's instructions and the principal (the bank) was before the court, so no orders could issue against the auctioneer personally and it should not incur the expense of defending the suit.

p. 3
03

Striking out the suit against the newly joined 3rd defendant

Holding

Refused as premature; the plaintiffs should first amend their plaint to plead their claim against the 3rd defendant.

Reasoning

Applying D.T. Dobie vs Muchina, a suit should be struck out only where it cannot be cured by amendment. The 3rd defendant had just been joined and the plaintiffs alleged it failed to exercise due diligence in securing the charge; the proper course was to await the amended plaint before considering striking out.

p. 3
04

Omnibus application objection

Holding

Rejected; the orders sought were capable of independent defence and determination.

Reasoning

The plaintiffs argued the application was incompetent for combining unrelated orders. The court held the orders could be defended and determined independently of one another, so the omnibus objection lacked merit and was dismissed.

p. 3

Legal principles established

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  • A party affected by exparte injunction orders who was never joined or afforded an opportunity to be heard may seek setting aside of those orders rather than appeal, and the orders must be set aside ex debito justitiae.
  • A plaintiff seeking equitable relief is obliged to join as a party a known chargee whose interests would be affected by injunctive orders; failure to do so is material non-disclosure.
  • No cause of action lies against an auctioneer who is an agent of a disclosed principal where the principal has been brought on board.

Court orders

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  1. 1.The injunctive orders granted on 28th June 2016 are set aside in their entirety
  2. 2.The plaintiffs' suit against the 2nd defendant is struck out
  3. 3.The prayer to strike out the suit against the 3rd defendant is declined as premature
  4. 4.The objection that the application was an incompetent omnibus application is dismissed
  5. 5.Costs of the application awarded to the 3rd defendant/applicant, and costs of the struck-out suit against the 2nd defendant

Authorities

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Legislation

  • Statute of limitations (referred to generically as 'statute of limitations')Not specified

Cases cited (4)

  • Shah vs Mbogo
    (1968) EA 93
  • Patel vs E.A Cargo Handling Services Limited
    (1974) EA 75
  • Chemwolo & Another vs Kubendes
    (1986) KLR 492
  • D.T. Dobie vs Muchina
    (1982) KAR 1
Jurisdiction invoked
Original civil jurisdiction over the suit and interlocutory application (specific enabling provision not cited in the judgment)

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, "Catherine Kanini Kioko & another v Ruweya Ali Mwinyi & 2 others [2017] KEELC 3678 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3678/eng@2017-01-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.