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ELCDismissedNotice of Motion dated 19th November, 2018 (in the suit over LR No. 209/13284/2)· [2019] KEELC 2790 (KLR)

Mariam Adam Ahmed v Shariff Forex Bureau Company Ltd [2019] KEELC 2790 (KLR)

Environment and Land Court
27 June 2019
EOE.O. Obaga
1,046 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused a woman's request to protect her home on company land because she hid her family ties to the company.

What this practically means

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Executive summary

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The Applicant, wife of a director of the Respondent company, filed a Notice of Motion dated 19th November 2018 seeking a temporary injunction restraining the Respondent from evicting her or interfering with her possession of LR No. 209/13284/2, and ancillary police enforcement, pending determination of a suit in which she claimed permanent injunction and adverse possession. She asserted she had occupied the property since 2000, built and rented out a two-bedroomed house, and that a distress for rent of Kshs.1,200,000/= proclaimed on 6th November 2018 by Kingpin Auctioneers had no basis. The Respondent, represented by a replying affidavit of Jafar Shariff Omar (80% shareholder; the Applicant's husband holds 20%), contended that the Applicant's husband was permitted to occupy the premises, refused to sign a tenancy agreement, and that the Applicant came to court with unclean hands and with material non-disclosure. The Applicant objected that the deponent lacked a board resolution, and alleged the dispute stemmed from property battles between the two director-brothers. The court framed a single issue: whether the Applicant had disclosed a case warranting an injunction. Holding that an injunction is equitable and requires clean hands, the court found material non-disclosure of her relationship to the Respondent's directorship and no prima facie case, and rejected the challenge to the replying affidavit given the directors' disputes. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether the Applicant disclosed a prima facie case warranting a temporary injunction

Holding

She did not; the application was dismissed

Reasoning

The court applied the equitable principle that an applicant for an injunction must come with clean hands and demonstrate a prima facie case. The Applicant failed to disclose that she was the wife of a director of the Respondent with a stake in it, which was material given her adverse possession claim. The disputes between the two directors also made a board resolution authorising the replying affidavit impracticable, undermining her objection to the affidavit.

p. 2
02

Whether the replying affidavit of Jafar Shariff Omar should be expunged for lack of a board resolution

Holding

The objection was rejected; given the directors' disputes, a resolution could not be expected

Reasoning

The Applicant argued the deponent lacked authority to swear the replying affidavit for the company. The court reasoned that the company has only two directors who are embroiled in property disputes, so one cannot expect them to sit and pass a resolution authorising pursuit of the case. The objection therefore did not defeat the Respondent's opposition to the application.

p. 2

Legal principles established

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  • An injunction is an equitable remedy and a party seeking it must come to court with clean hands and demonstrate a prima facie case
  • Material non-disclosure disentitles an applicant from obtaining interlocutory injunctive relief

Court orders

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  1. 1.The Applicant's Notice of Motion dated 19th November 2018 seeking a temporary injunction was dismissed
  2. 2.Costs of the application awarded to the Respondent
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court to grant interlocutory relief in land disputes (statutory provision not expressly 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, "Mariam Adam Ahmed v Shariff Forex Bureau Company Ltd [2019] KEELC 2790 (KLR)", Case Analysis (2019). Notice of Motion dated 19th November, 2018 (in the suit over LR No. 209/13284/2). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2790/eng@2019-06-27

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