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ELCPartially AllowedNot stated in the ruling (suit filed by plaint dated 22nd October 2021)

Halima Haji Sarah v Multiple Haurliers (E.A) Limited & another [2022] KEELC 912 (KLR)

Environment and Land Court
15 March 2022
EWE. K. Wabwoto
3,407 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan court took away a tenant's eviction protection because she hid key facts, but still allowed her case to go to trial on condition she pays rent.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (E. K. Wabwoto, J) determined two interlocutory applications in a suit by Halima Haji Sarah concerning property L.R No. 209/4194/38. The Plaintiff, who asserted occupation of over 30 years, obtained status quo orders on 16th November 2021 restraining her eviction pending determination of the suit, and later sought police oversight of those orders. The 2nd Defendant, who claimed to be the registered owner following a transfer from the 1st Defendant on 10th September 2021 for Ksh 77,000,000, sought payment of rent, variation of the status quo orders, striking out of the plaint as an abuse of process, and dismissal of the suit. The court framed two issues: non-disclosure of material facts and the appropriate remedies. It found the Plaintiff guilty of material non-disclosure: she had earlier filed Rent Tribunal Case No. E633 of 2021 against the same parties seeking similar eviction-restraint orders, and her plaint falsely stated that no other suit was pending; she also failed to disclose the completed transfer of the property before filing suit. Applying the principles in Bahadurali Ebrahim Shamji v Al Noor Jamal, the court held that a party obtaining ex parte relief without full disclosure forfeits any advantage gained. However, invoking Co-operative Merchant Bank v Wekesa, Yaya Towers v Trade Bank and D.T. Dobie v Muchina, it declined to strike out the plaint, holding that striking out is draconian and reserved for plain cases. The court dismissed the Plaintiff's application in its entirety, varied the status quo orders to require the Plaintiff to pay monthly rent to the 2nd Defendant pending trial, and ordered that costs abide the suit.

Questions the Court framed

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

  1. 1.Whether there was non-disclosure of material facts by the Plaintiff?
  2. 2.What are the appropriate orders/remedies that can be issued herein?

Key legal issues

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01

Whether the Plaintiff was guilty of non-disclosure of material facts when obtaining the status quo orders

Holding

Yes - the Plaintiff failed to disclose the pending Rent Tribunal case and the fact that the suit property had already been transferred to the 2nd Defendant before filing suit.

Reasoning

The Plaintiff had filed Rent Tribunal Case No. E633 of 2021 against the same parties on 7th October 2021 seeking similar eviction-restraint orders, yet her plaint stated there was no pending suit between the parties. She also did not disclose that the property had been transferred to the 2nd Defendant on 10th September 2021 before she filed suit. Applying the settled principles on ex parte disclosure, the court held she obtained the status quo orders without disclosing material facts, and the advantage gained must be taken away.

p. 4
02

Whether the plaint should be struck out as an abuse of court process

Holding

No - striking out would be draconian at this stage and the court declined to exercise that jurisdiction.

Reasoning

Relying on Co-operative Merchant Bank v Wekesa, Yaya Towers v Trade Bank and D.T. Dobie v Muchina, the court held that striking out is a draconian remedy exercisable sparingly and only in plain cases. The suit, despite the Plaintiff's non-disclosure, still showed a semblance of a cause of action and should proceed to full hearing rather than be summarily dismissed.

p. 4
03

What consequential orders should issue on both applications

Holding

The Plaintiff's application was dismissed; the status quo orders were varied to require her to pay monthly rent to the 2nd Defendant pending trial; costs abide the suit.

Reasoning

Having found material non-disclosure, the court deprived the Plaintiff of the advantage of the unqualified status quo orders but did not remove her protection entirely. Balancing the parties' positions, it allowed the 2nd Defendant's prayer for rent pending determination while permitting the suit and counterclaim to proceed to full hearing, with costs to abide the outcome.

p. 5

Legal principles established

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  • A party seeking ex parte or equitable relief must make full and fair disclosure of all material facts, and the penalty for material non-disclosure is that any advantage obtained will be taken away.
  • Materiality of facts is decided by the court, not by the applicant or his legal advisers, and the duty extends to facts the applicant would have known with proper inquiries.
  • Striking out a pleading is a draconian act exercisable only in plain and exceptional cases; a suit with a mere semblance of a cause of action should proceed to trial.

Court orders

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  1. 1.The Plaintiff's application dated 20th October 2021 is dismissed in its entirety.
  2. 2.The status quo orders issued on 16th November 2021 are varied to the extent that pending the hearing and determination of this suit the Plaintiff is directed to pay the monthly rent of the suit property to the 2nd Defendant as and when it falls due.
  3. 3.Costs shall abide the suit.

The bench

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

EW
majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property L.R No. 209/4194/38; specific provision not stated in the ruling.

Relief refused

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Plaintiff's prayer that police oversee enforcement of the status quo orders preventing her eviction

The Plaintiff was found guilty of material non-disclosure when obtaining the status quo orders, so the advantage gained was taken away and her application dismissed in its entirety.

p. 5

2nd Defendant's prayer that the plaint be struck out as an abuse of court process

Striking out a pleading is a draconian act reserved for plain cases; the suit shows a semblance of a cause of action and should proceed to trial.

p. 4

2nd Defendant's prayer for dismissal of the Plaintiff's suit / setting aside of the status quo orders entirely

The court instead varied the orders, permitting the suit to proceed to full hearing with a rent-payment condition.

p. 5

Costs

Costs shall abide the suit.

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.

i. The Plaintiff's application dated 20th October 2021 is dismissed in its entirety. ii. The status quo orders issued on 16 th November 2021 are varied to the extent that pending the hearing and determination of this suit the Plaintiff is directed to pay the monthly rent of the suit property to the 2 nd Defendant as and when it falls due. iii. Costs shall abide the suit.
p. 5Final orders/disposition
it is the finding of this court that indeed the Plaintiff is guilty of material disclosure for obtaining the status quo orders without disclosing all material facts to the court.
p. 4Non-disclosure of material facts
Thus, when a party comes to Court on an application supported by an Affidavit under oath and fails to outline and disclose matters that are material to the granting of orders, such a party is acting in a manner suggesting that they are peddling falsehood while under oath.
p. 4Consequences of non-disclosure on oath
It is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases, and its exercise would not be justified merely because the story told in the pleadings was highly improbable
p. 4Striking out pleadings - sparing exercise
Striking out a pleading is a draconian act, which may only be resorted to, in plain cases
p. 4Striking out pleadings

Issues in the judgment

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minor

The disposition refers to 'The Plaintiff's application dated 20th October 2021' whereas the application under determination was dated 20th December 2021 - an apparent typographical error in the final orders.

minor

The holding states the Plaintiff is 'guilty of material disclosure' where the context indicates the intended word is 'non-disclosure'.

minor

The quoted plaint paragraph asserting no pending suit is attributed in the text to paragraph 15 of the plaint; the paragraph reference conflicts with the instruction not to rely on paragraph numbering but the quotation itself is verbatim.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Halima Haji Sarah v Multiple Haurliers (E.A) Limited & another [2022] KEELC 912 (KLR)", Case Analysis (2022). Not stated in the ruling (suit filed by plaint dated 22nd October 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/912/eng@2022-03-15

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