Catherine Kanini Kioko & another v Ruweya Ali Mwinyi & 2 others [2017] KEELC 3678 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Setting aside injunction orders obtained without notice to the chargee
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.
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.
Striking out the suit against the 2nd defendant (auctioneer)
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.
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.
Striking out the suit against the newly joined 3rd defendant
Refused as premature; the plaintiffs should first amend their plaint to plead their claim against the 3rd defendant.
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.
Omnibus application objection
Rejected; the orders sought were capable of independent defence and determination.
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.
Legal principles established
#- 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
#- 1.The injunctive orders granted on 28th June 2016 are set aside in their entirety
- 2.The plaintiffs' suit against the 2nd defendant is struck out
- 3.The prayer to strike out the suit against the 3rd defendant is declined as premature
- 4.The objection that the application was an incompetent omnibus application is dismissed
- 5.Costs of the application awarded to the 3rd defendant/applicant, and costs of the struck-out suit against the 2nd defendant
- Jurisdiction invoked
- Original civil jurisdiction over the suit and interlocutory application (specific enabling provision not cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.