Bandari Investments & Co Ltd v Martin Chiponda & 139 others [2021] KEELC 581 (KLR)
The bottom line
#A Mombasa court cancelled injunctions a landowner obtained by hiding other lawsuits, and ordered its officials to explain why they should not be punished.
What this practically means
#Executive summary
#Key legal issues
#Abuse of court process through multiplicity of suits and non-disclosure
The court found the Plaintiff deliberately concealed the existence of multiple pending suits over the same property and obtained ex parte orders through deception, warranting suo motu setting aside of those orders and show-cause proceedings
The court took judicial notice that the Plaintiff instituted ELC No. 160 of 2021 against parties already sued in ELC No. 16 of 2021, swore a verifying affidavit falsely asserting no other suit was pending, and used orders obtained without proper service to carry out mass demolitions and evictions. The court held this bordered on perjury and was a serious abuse of due process.
Case management of multiplicity of suits over the same suit property
All proceedings by the same parties over the same land were directed to be managed under one court with ELC No. 16 of 2021 as the lead file pending consolidation
Invoking the overriding objective under Sections 1A and 3A of the Civil Procedure Act, Section 3 of the ELC Act and Article 159 of the Constitution, the court directed consolidation of the related files to avoid confusion, conflicting orders and piecemeal litigation over the same 59-acre suit property.
Preservation of the suit property pending hearing
The court extended interim injunctions, ordered maintenance of status quo and directed registration of an inhibition against the title
To preserve the land amid ongoing demolitions and evictions, the court exercised its powers to extend existing injunctions, maintain the status quo and direct the Land Registrar Mombasa to register an inhibition under Sections 68 and 69 of the Land Registration Act, 2012 until the suit is heard and determined.
Court's power to conduct a site visit (locus in quo)
The court invoked Order 40 Rule 10(1) and Order 18 Rule 11 of the Civil Procedure Rules to conduct a locus in quo for inspection and examination, not to adduce fresh evidence
The court directed a site visit to examine the acquisition of the property, the invasion by the Defendants and the forcible evictions and demolitions, so as to gain a better perspective for decision-making, expressly limiting the visit to inspection rather than reception of fresh evidence or testing evidence on record.
Legal principles established
#- A court may set aside its own interim orders suo motu where they were procured by material non-disclosure, deceit and abuse of process
- A plaintiff is under a duty to disclose to the court other pending suits between the same parties over the same subject matter
- An advocate who appears without filing a notice of appointment or memorandum of appearance abuses the court's trust
Court orders
#- 1.All civil cases over the suit property (Constitution Petition No. 15/2017, ELC No. 16 of 2021 and ELC No. 160 of 2021) to be brought under one court for case management
- 2.The interim orders granted on 17th August, 2021 and 13th October, 2021 in ELC No. 160 of 2021 set aside, vacated and/or discharged suo motu under Order 40 Rule 7 of the Civil Procedure Rules
- 3.ELC No. 160 of 2021 and ELC No. 16 of 2021 to be mentioned together, with ELC No. 16 of 2021 as the lead file, until consolidation
- 4.The Chairman of the Plaintiff, Mr. Ken Tobias Odero Sungu, Mr. Mwanyika Musungu Advocate and Mr. Arika Advocate to appear before the court on 18th November, 2021 to show cause why stern action should not be taken for acts of deceit and perjury
- 5.A site visit (locus in quo) of the suit land on 19th November, 2021 under maximum security, limited to counsels and a few representatives
- 6.All pending interlocutory applications (28th May, 2021, 19th August, 2021 and 30th September, 2021) and the two preliminary objections to be disposed of simultaneously by written submissions with 10 minutes highlighting each
- 7.All Defendants granted 21 days to comply with Orders 6(1), 7(1) and Order 11 of the Civil Procedure Rules by filing statements of defence and counterclaim, lists of documents, witnesses and witness statements; Plaintiff to reply to the defence and counterclaim
- 8.Peace, tranquility and quiet possession to be maintained on the suit premises
- 9.The temporary interim injunction orders issued on 1st February and 19th August 2021 extended until the matter is heard and determined
- 10.Status quo to be maintained until the case is heard and determined
- 11.The Land Registrar Mombasa directed to register an inhibition order against Land Reference Numbers MN/11/817 under Sections 68(1) & (2) and 69 of the Land Registration Act, 2012
- 12.Out-of-court settlement negotiations encouraged; any consent to be recorded and adopted as an order of the court
- Jurisdiction invoked
- Sections 1, 1A, 3 and 3A of the Civil Procedure Act, Cap. 21; Section 3 of the Environment and Land Court Act, 2012; Articles 159(1) and (2) of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bandari Investments & Co Ltd v Martin Chiponda & 139 others [2021] KEELC 581 (KLR)", Case Analysis (2021). ELC No. 16 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/581/eng@2021-11-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.