Unicom Limited v Diamond Trust Bank & another [2020] KEELC 3293 (KLR)
The bottom line
#The High Court in Eldoret blocked no auction because the company suing as a tenant had no lease, hid key facts, and could be paid money instead.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant established a prima facie case with a probability of success
- 2.Whether the applicant would suffer irreparable loss not capable of being compensated by damages
- 3.Where the balance of convenience lies
- 4.Whether the applicant's material non-disclosure and conduct disentitle it to an equitable remedy
- 5.Whether the statutory notices under section 96 of the Land Act were duly served
Key legal issues
#Prima facie case - proof of tenancy
Applicant, suing as a tenant, failed to attach any lease or tenancy agreement and thus failed to establish a prima facie case
The applicant sued as a tenant of the 2nd defendant but attached no lease or tenancy agreement conferring authority to occupy the suit property; only photographs of improvements of no distinguishing character were attached, making it impossible to establish a prima facie case with probability of success under Giella v Cassman Brown.
Material non-disclosure and multiplicity of suits
The applicant concealed its relationship with the 2nd defendant and prior dismissed suits over the same property, disentitling it to equitable relief
The same directors/shareholders featured in multiple companies (Unicorn Ltd, Bio Corn Ltd, Equip Agencies Ltd) that had filed successive suits over the same property, all dismissed in favour of the bank. The 2nd defendant did not oppose the application. This concealment and litigation conduct rendered the applicant undeserving of an injunction.
Irreparable loss
Damages were an adequate remedy since the applicant annexed a schedule valuing the property
The applicant annexed a schedule of the property with figures for its value, showing the value is quantifiable. Following Wairimu Mureithi v City Council of Nairobi, no injunction should issue where damages in the measure recoverable at common law would be an adequate remedy.
Service of statutory notices
Service of the statutory notices had already been judicially found in earlier rulings, so the applicant's claim of non-service was implausible
While the applicant claimed never to have been served with the auction notice, a prior ruling in Eldoret HCCC No.19/2019 found that notices were duly served at the premises, sanctioning the auction. The inconsistent claim of non-service undermined the applicant's credibility.
Legal principles established
#- A party seeking an equitable remedy such as an injunction must make full and frank disclosure of all material facts
- No injunction should be granted where damages would be an adequate remedy
Court orders
#- 1.The application dated 7th November 2019 is dismissed with costs to the 1st defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over an interlocutory injunction application in a pending suit
Relief refused
#Stay of the intended auction of LR No. Eldoret Municipality/Block 10/34
Application lacked merit; no prima facie case and material non-disclosure
Temporary injunction restraining advertisement, sale or dealing with LR No. Eldoret Municipality/Block 10/34
No prima facie case established; damages adequate; conduct and non-disclosure disentitle applicant to equity
Costs
Application dismissed with costs to the 1st defendant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I have considered the application, the submissions by counsel and the relevant judicial authorities and come to the conclusion that the application lacks merit and is dismissed with costs to the 1st defendant.
The casual nature on how the application was brought makes it an uphill task for the applicant to establish a prima facie case with a probability of success.
The conduct of a party who seeks equitable remedy is paramount for consideration.
This makes the applicant guilty of material non-disclosure on the relationship with the 2nd defendant and the similar cases that have been filed in respect of the same property.
The applicant will not suffer irreparable damage not capable of being compensated by damages.
Issues in the judgment
#Judgment internal inconsistency: the applicant asserted non-service of the auction notice while the court notes awareness of the statutory notices
Quotation from Turbo Highway Eldoret Ltd is embedded without clear quotation marks, blending authority text with the court's narration
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Unicom Limited v Diamond Trust Bank & another [2020] KEELC 3293 (KLR)", Case Analysis (2020). Eldoret HCCC (application dated 7th November 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3293/eng@2020-02-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.