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ELCPartially AllowedNot stated in the extract (Eldoret ELC suit, application dated 11th June 2018)· [2019] KEELC 3322 (KLR)

Kilima Limited & another v Samuel Ruto – Chairman & 21 others; Carewell Farmers Company Limited & another (Interested Parties) eKLR [2019] KEELC 3322 (KLR)

Environment and Land Court
9 May 2019
9,938 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~40 min to read original · ~4 min brief

The bottom line

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A landowner who hid facts when getting ex parte court orders in Kenya lost them, as the court replaced the injunction with a status quo order.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Eldoret by M.A Odeny J on three applications arising from two suits properties, L.R No 8565/1 (Kilima I) and L.R No 8565/3 (Kilima II) in Uasin Gishu County. The plaintiffs, claiming to be registered owners since 1963, obtained ex parte injunctive orders on 4th July 2018 restraining the defendants from dealing with or occupying the land, after a hearing the defendants did not attend despite elaborate service. The defendants, the Attorney General (enjoined to protect over twenty public utilities including schools, dams and cattle dips) and the proposed interested party Carewell Farmers Company Limited then applied to set aside or vary the orders and to enjoin Carewell as an interested party, contending the orders were obtained through material non-disclosure - the plaintiffs concealed occupation by over 1,000 households since 1985 and the public utilities - and that the plaintiffs lacked authority to sue. The court allowed the joinder of Carewell, finding it had demonstrated a stake in the land and that joinder would avoid multiplicity of suits. On the setting-aside application, the court held service was proper but that the plaintiffs' photographs exposed undisclosed occupation; non-disclosure amounted to unclean hands, disentitling them from confirmation of the injunctive orders. The court varied the 4th July 2018 orders with an order of maintenance of status quo pending trial, directed an expedited hearing, gave interested parties 14 days to file documents, and deferred the challenge to the suit's competency for want of a company resolution. Costs were not addressed.

Key legal issues

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01

Joinder of Carewell Farmers Company Limited as an interested party

Holding

Joinder allowed - the applicant demonstrated a stake in the suit land and its presence would enable complete adjudication and avoid multiplicity of suits

Reasoning

The court applied Order 1 Rule 10(2) and the Supreme Court's definition of an interested party in Communications Commission of Kenya v Royal Media Services. Photographs and documents showed occupation and structures, evidencing a stake. Joinder would cause no prejudice and would avoid separate suits over the same land, saving judicial time and costs.

p. 15
02

Whether the ex parte injunction orders of 4th July 2018 should be set aside for non-disclosure of material facts

Holding

Orders varied: plaintiffs failed to disclose occupation by many families and the existence of public utilities; a proper order would have been one of status quo

Reasoning

The court held that although service was proper, the plaintiffs' own elaborate service with photographs exposed undisclosed facts of occupation. Had facts like occupation and public schools, health centre and cattle dips been disclosed, the best order would have been status quo. Injunction being equitable, non-disclosure amounts to unclean hands and the orders could not be confirmed.

p. 15
03

Proper service on the defendants

Holding

Service was proper and elaborate, but the process server's photographs exposed non-disclosed occupation

Reasoning

The court had earlier observed the elaborate nature of service including photographs of persons and locations. The parties were properly served; the defendants' failure to appear on 4th July 2018 did not vitiate the orders, but the photographic evidence rebounded on the plaintiffs by revealing occupation they had concealed.

p. 15
04

Competency of the suit for want of authority/resolution

Holding

Left undecided at this interlocutory stage

Reasoning

Although counsel for the interested party argued that a suit filed without a company resolution is a non-starter, the court declined to determine the question at the interlocutory stage, deferring it to trial while giving the interested parties leave to file documents within 14 days.

p. 16

Legal principles established

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  • An ex parte applicant owes a high duty of candour to make full and fair disclosure of all material facts; breach results in discharge or variation of the orders
  • Non-disclosure of material facts amounts to unclean hands and disentitles a party to discretionary equitable relief
  • Joinder of an interested party is governed by Order 1 Rule 10(2); once an identifiable stake or interest is demonstrated the court should freely exercise its discretion in favour of joinder

Court orders

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  1. 1.Allowed the application for joinder of Carewell Farmers Company Limited as an interested party
  2. 2.Varied the ex parte order of injunction granted on 4th July 2018 with an order of maintenance of status quo pending the hearing and determination of the suit
  3. 3.Directed that the suit be heard on a priority basis
  4. 4.Granted the interested parties leave to file their documents, if any, within 14 days
  5. 5.Reserved the question of the competency of the suit / authority to file the suit for trial

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 19 Rule 2
  • Civil Procedure ActSections 1A and 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Plaintiffs' Memorandum and Articles of AssociationArticle 98

Cases cited (28)

  • Invesco Assurance Co. Ltd v Commissioner of Insurance & Others
    [2016] eKLR
  • Ahmednasir Abdikadir & Co. Advocates v National Bank of Kenya Limited (2)
    [2006] 2 EA 6
  • Signature Tours & Travel Limited v National Bank of Kenya Limited
    [2017] eKLR
  • Bahadurali Ebrahim Shamji v Al Noor Jamal & 2 Others
    Civil Appeal No. 210 of 1997
  • GOTV Kenya Limited v Royal Media Services Limited & 2 Others
    [2015] eKLR
  • Giella v Cassman Brown
  • Shivrling Supermarket Limited v Jimmy Ondicho Nyabuti and 2 Others
    (2018) eKLR
  • Edgar Kipsase Choge & 4 Others v China Overseas Engineering Group Co. Ltd & 6 Others
    [2017] eKLR
  • Pastor Anthony Makena Chege v Nancy Wamaitha Magak & Another
    [2015] eKLR
  • Lilian Wairimu Ngatho & another v Moki Savings Co-Operative Society Limited & another
    [2014] eKLR
  • Julius Gatoto Maina v Johnson Gaitho Wanyoiri & 3 others
    [2018] eKLR
  • Central Kenya Ltd v Trust Bank & 4 Others
    C.A No. 222 of 1998
  • Standard Limited v Alfred Mincha Ndubi
    [2018] eKLR
  • Brink's-Mat Ltd v Elcombe and others
    [1988] 3 All ER 188
  • Sita UK Group Holdings Ltd v Serruys
    (2010) EWHC 698 (QB)
  • Meridian Global Funds Management Asia Ltd v Securities Commission
    [1995] 2 AC 500
  • Margaret Wangui Karugu v John Njenga Karugu
    [2018] eKLR
  • The King v General Commissioner for the Purpose of Income Tax Acts for the District of Kensington: Ex-Parte Princess Edmond De Pligac
    (1917) 1 K.B 486
  • Gerald Munene Mugo v Muriithi Maganio & 2 others
    (2016) eKLR
  • Affordable Homes Africa Limited v Ian Henderson & 2 others
    (2006) eKLR
  • Falcon Global Logistics Co. Ltd v Management Committee of Eldama Ravine Boarding Primary School
    Eldoret ELC 117 of 2014
  • Hasham Lalji Properties Ltd v Kipchoge Keino
    [2006] eKLR
  • Hasham Lalji Properties Ltd v Kipchoge Keino
    [2017] eKLR
  • Tate Access Floor v Boswell
    (1990) 3 All ER 303
  • Republic v Kenya Medical Training College & another Ex-Parte Kenya Universities and Colleges Central Placement Service
    [2015] eKLR
  • Nahashon Njage Nyaggah v Savings & Loan Kenya Limited & another
    [2006] eKLR
  • Communications Commission of Kenya & 30 others v Royal Media Services Ltd & 7 others
    Petition No. 14 of 2014
  • Sarkar's Code of Civil Procedure, 11th Edition, Reprint 2011, Vol. I P. 887
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; applications under Order 1 Rule 10(2) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kilima Limited & another v Samuel Ruto – Chairman & 21 others; Carewell Farmers Company Limited & another (Interested Parties) eKLR [2019] KEELC 3322 (KLR)", Case Analysis (2019). Not stated in the extract (Eldoret ELC suit, application dated 11th June 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3322/eng@2019-05-09

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