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ELCDismissedNot stated in judgment

Kenya Methodist University v New Chota Raha Investments Ltd [2020] KEELC 2513 (KLR)

Environment and Land Court
21 May 2020
1,536 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to protect a tenant that hid key facts and ignored a tribunal order, showing honesty is essential in injunction applications.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (L. Komingoi J) determined the defendant's notice of motion dated 23rd July 2018, brought under sections 1A, 1B, 3A and 63 of the Civil Procedure Act and Order 40 of the Civil Procedure Rules 2010. The defendant sought a temporary injunction restraining the plaintiff from selling, disposing of or interfering with its goods and tools of trade allegedly carted away from premises at KEMU Towers on LR No. 209/0566 on 20th July 2018, plus orders to reopen the premises and return the goods. The plaintiff opposed, contending the defendant was in rent arrears of Kshs.4,006,510/-, had failed to pay costs of Kshs.100,000/- awarded by the Business Premises Rent Tribunal, and had made material non-disclosure when obtaining ex parte orders. The court identified two issues: whether the application met the threshold for a temporary injunction, and costs. Applying Giella vs Cassman Brown and Mrao, and the full-disclosure principle in Kenleb Cons Ltd and Abraham Lenauia Lenkon, the court found the defendant had not disclosed all material facts and had not established a prima facie case with a probability of success. Applying Mawani vs Mawani, the court further held the defendant, in disobedience of the BPRT order, did not deserve the court's protection. The defendant also did not rebut evidence that it had vacated the premises. The application was dismissed with costs to the plaintiff/respondent on 21st May 2020.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether or not the plaintiff/applicant's application meets the threshold for grant of temporary injunction
  2. 2.Who should bear costs?

Key legal issues

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01

Whether the defendant established a prima facie case with a probability of success for temporary injunction

Holding

The court found no prima facie case because the defendant failed to disclose material facts, including rent arrears of Kshs.4,006,510/- and non-payment of BPRT-awarded costs

Reasoning

The onus lies on the applicant under Giella vs Cassman Brown. The defendant did not challenge the averments in the replying affidavits showing rent arrears and non-payment of costs awarded by the Business Premises Rent Tribunal. Applying the full-disclosure rule in Kenleb Cons Ltd and Abraham Lenauia Lenkon, the court held the defendant disentitled itself from relief.

p. 2
02

Whether the defendant, having disobeyed the BPRT costs order, deserves the court's protection

Holding

The defendant did not deserve the orders sought as it had not obeyed the BPRT order to pay Kshs.100,000/- costs

Reasoning

Relying on Mawani vs Mawani, the court held that a party in disobedience of a court order may be refused relief until the impediment is removed. The defendant declined to pay costs awarded by the Business Premises Rent Tribunal and thus could not invoke the court's equitable jurisdiction.

p. 3
03

Who should bear costs

Holding

Costs awarded to the plaintiff/respondent

Reasoning

Having found no merit in the application, the court exercised its discretion on costs against the unsuccessful applicant.

p. 3

Legal principles established

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  • A party seeking injunctive relief, especially ex parte, must make a frank and full disclosure of all material facts and demonstrate a right, legal or equitable, requiring protection; failure to disclose disentitles the party from relief
  • A party who disobeys a court order may be refused a hearing or the court's protection until the impediment is removed or good reason shown

Court orders

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  1. 1.The notice of motion dated 23rd July 2018 is dismissed with costs to the plaintiff/respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3A and 63 of the Civil Procedure Act; Order 40 Rules 1, 4, 5, 8, 10 and Order 50 Rule 1 of the Civil Procedure Rules 2010

Relief refused

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Temporary injunction restraining the plaintiff from selling, disposing of or interfering with the defendant's goods and tools of trade carted away on 20th July 2018

Defendant failed to establish a prima facie case and did not make full disclosure of material facts

p. 2

Order directing the plaintiff to open the premises at Ground floor and mezzanine floor of KEMU Towers on LR No. 209/0566

Application dismissed for want of merit; defendant guilty of non-disclosure and disobedience of BPRT orders

p. 3

Order directing the plaintiff to return the defendant's goods and tools of trade to the premises

Application dismissed; defendant did not rebut evidence that it had already vacated the premises

p. 3

Costs

The application is dismissed with costs to the plaintiff/respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

All in all I find no merit in this application and the same is dismissed with costs to the plaintiff/respondent. It is so ordered.
p. 3Disposition - dismissal of injunction application
I am not satisfied that the defendant/applicant deserves any protection from this court. I find that it has failed to establish a prima facie case with a probability of success.
p. 2Failure of Giella threshold
to succeed in an application for injunction an applicant must not only make a frank and full disclosure of all relevant facts to the just determination of the application but must also show that he has a right, legal or equitable, which requires protection by injunction.
p. 2Duty of full and frank disclosure in injunction applications
Where a party does not observe this rule, he disentitles himself from the relief which he asks the court to grant and such relief will not even be visited by the court at the interpartes stage
p. 2Consequence of material non-disclosure

Issues in the judgment

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minor

The court's framing of the first issue refers to 'plaintiff/applicant's application' although the application was brought by the defendant/applicant

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, "Kenya Methodist University v New Chota Raha Investments Ltd [2020] KEELC 2513 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2513/eng@2020-05-21

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