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ELCPartially AllowedNot stated on the face of the judgment (ex-parte chamber summons dated 6/7/2021)· [2021] KEELC 2442 (KLR)

Republic v Principal Magistrates Court at Milimani & another Ex parte Applicant Nuh Abdille Hassan; Halima Mahmood Ali (Intersted Party) [2021] KEELC 2442 (KLR)

Environment and Land Court
23 July 2021
BEB M Eboso
1,705 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled an ex-parte stay order because the applicant hid an earlier similar application, confirming full disclosure is mandatory.

What this practically means

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Executive summary

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The ex-parte applicant, Nuh Abdille Hassan, filed a chamber summons dated 6/7/2021 seeking leave to bring judicial review proceedings to quash a Magistrate Court eviction order of 21/6/2021 made in Nairobi CMCC No 800 of 2018, contending the order issued after the Magistrate Court had struck out the suit for want of jurisdiction. On 9/7/2021, noting from the supporting affidavit that Okongo J was seized of a related suit (ELC No 775 of 2017) between the same parties, the court directed the application to be placed before Okongo J and granted an interim stay pending that disposal. The interested party applied to set aside the interim stay on three grounds: non-disclosure of material facts, including the existence of a prior, similar application (JR E012/2021) on which Okongo J had given directions without a stay; improper withdrawal of that application; and the absence of leave as a precondition to preservatory orders. The court, sitting as B M Eboso J, held that the single question was whether there was a proper basis for setting aside the interim stay. It found the ex-parte applicant had a duty to disclose the prior application, and that this non-disclosure was sufficient ground for discharging the ex-parte order, applying the full and frank disclosure principle from Owners of the Motor Vessel 'Lillians' v Caltex Oil (Kenya) Ltd. However, it rejected the argument that the stay was improperly granted, holding the court properly exercised discretion under Section 13(7) of the Environment and Land Court Act. The court vacated the interim stay with effect from 29/7/2021, directed the application before Okongo J on that date, set a timelines framework for responses and submissions, and ordered costs in the cause.

Key legal issues

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01

Whether non-disclosure of a material fact warrants setting aside an ex-parte interim stay order

Holding

Yes - the ex-parte applicant's failure to disclose the earlier, similar application (JR E012/2021) and its disposal directions is sufficient ground for discharging the ex-parte order of 9/7/2021.

Reasoning

The court found the one material non-disclosed fact was the prior filing of ELC JR E012/2021 seeking similar orders, on which Okongo J had given disposal directions without a stay. Applying the established ex-parte full and frank disclosure principle, the court held that had disclosure been made, the court might have taken a different view or framed the stay differently, and that this alone sufficed to vacate the order.

p. 2
02

Whether the court could grant an interim preservatory stay before granting leave under the judicial review procedure

Holding

Yes - the court properly exercised discretionary jurisdiction under Section 13(7) of the Environment and Land Court Act to grant a preservatory interim stay pending interpartes hearing of the application for leave.

Reasoning

The interested party argued that without leave ex-parte, no interim stay should have issued. The court held that the Legislature, in conferring discretion under Section 13(7), appreciated that urgent land-occupation situations (such as imminent eviction on a Friday) would arise, and that the court properly exercised that jurisdiction in the circumstances.

p. 2

Legal principles established

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  • A party seeking an ex-parte order is obligated to make full and frank disclosure of all material facts relating to the matter before court, and failure to make such disclosure may result in the discharge of the order even if the order would have been justified on full disclosure.

Court orders

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  1. 1.The interim stay order issued on 9/7/2021 shall stand vacated and shall lapse on 29/7/2021.
  2. 2.This matter shall be listed on 29/7/2021 for hearing of the application dated 6/7/2021 before Okongo J who is or was seized of a related case, ELC Case No 775/2017.
  3. 3.Responses to the said application shall be filed and served on or before Monday 26/7/2021 and parties shall file and exchange written submissions thereon before 28/7/2021.
  4. 4.Costs of the application shall be in the cause.

Authorities

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Legislation

  • Environment and Land Court ActSection 13(7)

Cases cited (2)

  • Owners of the Motor Vessel "Lillians" v Caltex Oil (Kenya) Ltd
    (1989) eKLR
  • In the Adria (Vasso)
    1 QB 477 at 477
Jurisdiction invoked
Section 13(7) of the Environment and Land Court Act

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, "Republic v Principal Magistrates Court at Milimani & another Ex parte Applicant Nuh Abdille Hassan; Halima Mahmood Ali (Intersted Party) [2021] KEELC 2442 (KLR)", Case Analysis (2021). Not stated on the face of the judgment (ex-parte chamber summons dated 6/7/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2442/eng@2021-07-23

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