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ELCDismissed· [2022] KEELC 2804 (KLR)
Laiser Communications Ltd v Tanad Transporters Limited & 2 others; City Council of Nairobi & another (Third party) (Environment & Land Case 64 of 2009) [2022] KEELC 2804 (KLR)
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·~7 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This ruling of the Environment and Land Court, Nairobi (Wabwoto J) determined a notice of motion dated May 5, 2022 by which the 1st and 3rd defendants sought to set aside orders made on April 8, 2022 directing the OCS, California Police Station to accompany Zachariah Baraza t/a Siuma Auctioneers in executing the decree issued on November 12, 2018 in favour of the plaintiff. The defendants argued that the auctioneer had made material non-disclosure by concealing the pendency of Petition No E009 of 2022 before the Supreme Court, relying on Law Society of Kenya v Attorney General on the impropriety of parallel proceedings in subordinate courts. The plaintiff opposed through a preliminary objection and replying affidavit, contending there was no stay of execution from either the Court of Appeal or the Supreme Court, and that under section 15 of the Supreme Court Act no valid appeal lay without leave. The court applied the disclosure principles in Bahadurali Ebrahim Shamji v Al Noor Jamal and found that although the Supreme Court petition existed, the Supreme Court had declined to certify the matter urgent and issued no stay of proceedings. The non-disclosure was therefore not of sufficient materiality to warrant setting aside the orders. The court noted it would have set the orders aside had any stay existed. The application was dismissed with no orders as to costs. Judgment below had been delivered on November 12, 2018; the defendants' appeal was dismissed by the Court of Appeal on April 1, 2022, and the petition was filed on April 7, 2022.
Key legal issues
#01
Whether non-disclosure of the pending Supreme Court petition warranted setting aside the orders of April 8, 2022
Holding
No. The Supreme Court declined to certify the matter urgent and issued no stay of proceedings; the omission was therefore immaterial and the orders of April 8, 2022 stand.
Reasoning
Applying the principles in Bahadurali Ebrahim Shamji v Al Noor Jamal on ex parte disclosure, the court held that materiality is measured by the importance of the omitted fact to the relief sought. Since the Supreme Court issued no stay, the fact of the pending petition had no bearing on the plaintiff's right to execute its decree, and the court would only have set aside its orders had a stay existed.
p. 3
Legal principles established
#- Non-disclosure of a pending appeal is not material where the superior court has issued no stay of proceedings; a successful litigant is entitled to enforce its decree absent stay orders
- Not every omission of disclosure leads to automatic discharge of an ex parte order
Court orders
#- 1.The application dated May 5, 2022 seeking to set aside the orders made on April 8, 2022 is dismissed
- 2.Dismissal with no orders as to costs
- Jurisdiction invoked
- Original and inherent jurisdiction of the High Court/Environment and Land Court over its own interlocutory orders (application to set aside orders of April 8, 2022 made in execution of the court's decree); no specific constitutional provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Dhamini Limited v Tanad Transporters Ltd & another [2021] KEELC 1660 (KLR)[2021] KEELC 1660 (KLR)6 Oct 2021
Cite this brief
#Cite this brief
Caselaw, "Laiser Communications Ltd v Tanad Transporters Limited & 2 others; City Council of Nairobi & another (Third party) (Environment & Land Case 64 of 2009) [2022] KEELC 2804 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2804/eng@2022-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.