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ELCDismissedNot stated in judgment (Notice of Motion dated 17th February 2022)· [2022] KEELC 2694 (KLR)

Tindika v Vipingo Properties Limited (Environment & Land Case 10 of 2022) [2022] KEELC 2694 (KLR)

Environment and Land Court
11 May 2022
3,874 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court threw out a KES 123 million property injunction because the applicant hid an earlier judgment against him — full honesty in court applications is non-negotiable.

What this practically means

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Executive summary

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This is a ruling by M.A. Odeny, Judge of the Environment and Land Court at Malindi, delivered on 11th May 2022 on a Notice of Motion dated 17th February 2022 by the plaintiff/applicant, an advocate of the High Court, seeking a temporary injunction and an order of inhibition restraining the defendant from dealing with L.R. Nos. 5025/236, 5025/239, 5025/240, 5025/241, 5025/242 and 5025/249, Vipingo, pending hearing of a suit for specific performance of an agreement for sale dated 2nd June 2017 for Kshs. 123,110,700.00. The applicant contended the defendant's purported rescission was premature because completion documents were never availed, while the respondent opposed on the ground of material non-disclosure and res judicata, relying on the ruling of Sila Munyao J in Mombasa Misc. Civil Application No. 45 of 2018 (OS) delivered on 9th February 2022, which found the applicant in breach and ordered removal of his caveats. The court framed two issues: whether the applicant was guilty of material non-disclosure of the Mombasa Matter, and whether the injunction threshold was met. Applying the golden rule in Tate Access Floor v Boswell and the clean hands principle, the court found the non-disclosure material - the applicant filed this application eight days after the adverse Mombasa judgment without disclosing it, sought orders effectively equivalent to the caveats already decreed unlawful, and had filed no appeal. The court declined to reach the injunction merits, discharged the interim injunction, directed the parties to comply with Order 11 within 30 days and fixed the matter for hearing. No costs order was made.

Key legal issues

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01

Material non-disclosure in ex parte applications

Holding

The applicant, who obtained an ex parte interim injunction without disclosing the Mombasa Misc. Civil Application No. 45 of 2018 judgment delivered eight days earlier against him on the same agreement, was guilty of material non-disclosure justifying immediate discharge of the ex parte order without examining the merits.

Reasoning

The court summarised the principles governing the ex parte applicant's duty of disclosure, including that the duty extends to facts discoverable on proper inquiry and that materiality determines whether the order is discharged without examining the merits. It found the applicant had not suggested the non-disclosure was innocent, that the Mombasa judgment covered the same agreement and transaction, and that the applicant filed this application eight days after that judgment without disclosing it. The injunction being equitable, non-disclosure amounted to unclean hands. The court declined to reach the injunction threshold question.

p. 7
02

Whether the interim injunction should be discharged for material non-disclosure

Holding

Yes; the ex parte interim injunction was discharged, the court expressly declining to consider whether the applicant had met the Giella v Cassman Brown threshold for an interlocutory injunction.

Reasoning

Because the applicant failed in his duty of utmost good faith by suppressing the existence and outcome of the Mombasa Matter, the court treated the non-disclosure as material and dispositive. It held the applicant should have appealed the Mombasa judgment if dissatisfied, noted the absence of any appeal, and observed that the issues, arguments and submissions in this application were similar to those decided in Mombasa. On that basis it discharged the interim injunction and directed compliance with Order 11 and fixing of the suit for hearing.

p. 7
03

Whether the plaintiff/applicant satisfied the conditions for grant of a temporary injunction

Holding

Not determined; the court expressly declined to reach this issue after finding material non-disclosure.

Reasoning

The respondent had contested the application on both non-disclosure and the merits, arguing the applicant could be compensated in damages since he quantified the claim at KES 123,110,700.00, and that the balance of convenience favoured the respondent given the caveats had been declared unlawful. The applicant relied on Mrao and Nguruman to assert a prima facie case and irreparable harm. Having found the disqualifying non-disclosure, the court held it unnecessary to evaluate the injunction criteria and disposed of the motion on that ground alone.

p. 7

Legal principles established

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  • An applicant for ex parte relief owes the court a duty of the fullest possible disclosure of all material facts, whether or not known after proper inquiry, and failure of material disclosure justifies immediate discharge of the ex parte order without examination of the merits
  • Material non-disclosure amounts to unclean hands, and an applicant for the equitable remedy of injunction must come to court with clean hands and good faith to benefit from the court's discretion

Court orders

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  1. 1.Discharge of the order of interim injunction granted ex parte
  2. 2.Parties to comply with Order 11 within 30 days
  3. 3.Matter to be fixed for hearing

Authorities

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Legislation

  • Land Registration ActSection 101
  • Civil Procedure RulesOrder 11; Order 21[1]
  • Law Society Conditions of Sale (1989) EditionCondition 4(7)
  • Public Order No. 2 of 2021 (Office of the Chief Justice circular dated 28th March, 2021)Online delivery of judgments due to Covid-19

Cases cited (14)

  • Housing Company of East Africa Limited v Board of Trustees National Social Security Fund & 2 others
    Civil Appeal No. 267 of 2016, Nairobi, [2018] eKLR
  • Mrao Limited v First American Bank of Kenya Limited & 2 Others
    [2003] eKLR; also cited as (2003) KLR 125
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    Civil Appeal No. 77 of 2012, Nairobi, [2014] eKLR
  • Joseph Mbugua Gichanga v Co-operative of Kenya Ltd
    [2005] eKLR
  • Gharib Suleman Gharib v Abdulrahman Mohamed Agil
    LLR No. 750 (CAK) Civil Appeal No. 112 of 1998
  • Republic v Kenya Medical Training College & another Ex-Parte Kenya Universities and Colleges Central Placement Service
    [2015] eKLR
  • Nyanja Holdings Ltd v Finance Bank Ltd
    [2008] eKLR
  • National Bank of Sharjah v Deliboerg
  • Blue Planet Group Ltd v William Downie
    [2018]
  • Giella v Cassman Brown & Co Ltd
    (1973) EA 35
  • Vivo Energy Kenya Limited v Maloba Petrol Station Limited & 3 others
    Civil Appeal No. 21 of 2014
  • Tate Access Floor v Boswell
    [1990] 3 All ER 303
  • Nahashon Njage Nyaggah v Savings & Loan Kenya Limited & another
    [2006] eKLR (Kasango J)
  • Vipingo Properties Limited v Randolph Tindika; Registrar of Titles (Interested Party), Mombasa Misc. Civil Application No. 45 of 2018 (OS)
    Ruling delivered 9th February 2022 (Sila Munyao J)
Jurisdiction invoked
Not expressly stated; the court invoked Section 101 of the Land Registration Act as the source of power to issue orders of inhibition, and Order 21[1] of the Civil Procedure Rules was waived in the delivery of the ruling

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, "Tindika v Vipingo Properties Limited (Environment & Land Case 10 of 2022) [2022] KEELC 2694 (KLR)", Case Analysis (2022). Not stated in judgment (Notice of Motion dated 17th February 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2694/eng@2022-05-11

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