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ELCAllowedEnvironment & Land Case 18 of 2021· [2023] KEELC 17195 (KLR)

Karin Anne Challis (Suing through the Attorney Isaack Ntongai Samwel) v The Attorney General & 4 others

Environment and Land Court of Kenya
5 May 2023
MOM. A. Odeny
2,899 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court cancelled land dispute orders because the plaintiff hid earlier lawsuits over the same property when asking for them.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (M.A. Odeny, J) determined a Notice of Motion dated 5th May 2022 by the 4th and 5th Defendants (Remo Lenzi and Seven Island Watamu Limited) seeking review, variation, rescission and setting aside of ex-parte orders issued on 17th February 2022 granting the Plaintiff leave, or in the alternative a stay of those orders. The Applicants argued the suit was res judicata, the Plaintiff having previously litigated the same subject matter (LR No. Kili/Jimba/1125, part of Plot No. 104 Watamu) in Malindi HCCC No. 31 of 2002 consolidated with HCCC No. 30 of 2002, in which a ruling by D.A. Onyancha on 23rd September 2002 struck out the Plaintiff's plaint with costs and held the title to be an unchallengeable first registration under Section 143 of the Registered Land Act. They further contended the Plaintiff concealed this litigation when obtaining the ex-parte orders. The Plaintiff opposed, asserting the previous cases involved different parties and causes of action and that no proof of the prior decision was attached. The Plaintiff filed no submissions. The court, applying Shah v Mbogo, Patel v E.A Cargo Handling and Wachira Karani, and the non-disclosure principles in Ruaha Concrete, found the Plaintiff admitted previous cases over the suit land and had failed to disclose them. It held that a party guilty of material non-disclosure cannot benefit from the court's orders, found sufficient cause demonstrated, and allowed the application as prayed, setting aside the orders of 17th February 2022 and discharging all consequential orders.

Key legal issues

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01

Material non-disclosure in obtaining ex parte orders

Holding

The Applicant demonstrated sufficient cause: the Plaintiff failed to disclose previous litigation over the same suit land, so the ex parte orders of 17th February 2022 were set aside and consequential orders discharged.

Reasoning

The court noted the Plaintiff admitted previous cases over the suit land, differing only in parties. A ruling of 23rd September 2002 had struck out the Plaintiff's suit No. 31 of 2002 with costs and the defence in suit No. 30 of 2002. Relying on Ruaha Concrete and related authorities, the court held that a party guilty of material non-disclosure cannot benefit from the court's orders, and exercised its wide discretion in the Applicants' favour.

p. 6
02

Res judicata

Holding

Res judicata was argued as a ground for setting aside the ex parte orders; the court's decision rested on non-disclosure, and the application was allowed as prayed on that basis.

Reasoning

The Applicants contended the suit was res judicata given the 2002 consolidated suits over LR No. Kili/Jimba/1125, including a finding that the title was a first registration under Section 143 of the Registered Land Act. The Plaintiff countered that no decision on the previous suits was attached as proof. The court did not make a definitive standalone res judicata finding, allowing the application on demonstrated sufficient cause.

Legal principles established

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  • A party guilty of material non-disclosure cannot benefit from the orders of the court; the court will not exercise its discretion in such a party's favour.
  • The discretion to set aside ex parte orders is wide and unfettered, exercised to avoid injustice but not to assist a party who deliberately obstructs or delays the course of justice.

Court orders

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  1. 1.The ex-parte orders (ruling) issued on 17th February 2022 are set aside
  2. 2.All consequential orders emanating therefrom are discharged accordingly

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 51 rule 15
  • Registered Land Act Cap. 300 (Repealed)Section 143

Cases cited (17)

  • Abok James Odera T/A A. J. Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates
    [2001] eKLR

    Ingredients of res judicata under Section 7 of the Civil Procedure Act

  • Republic v Baua Ali & Another Ex Parte Mohamed Gituma & another
    (2021) eKLR

    Res judicata principles

  • John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2015) eKLR

    Res judicata

  • Muchanga Investment Ltd v Safaris Unlimited (Africa) Ltd & 2 Others
    (2009) KLR 229

    Res judicata

  • Aviation and Airport Services Workers Union v Kenya Airport Authorities
    [2014] eKLR

    Non-disclosure of material facts

  • Rueda Concret Co Ltd et al v Paramount Universal Bank Ltd et al
    HCCC No. 430 of 2002

    Fundamental principles of non-disclosure of material facts

  • Abraham Mutai & 5 Others v Paul M. Mutwii & 34 Others
    [2015] eKLR

    Non-disclosure of material facts

  • Tate Access Floor v Boswell
    [1990] 3 All ER 303

    Non-disclosure of material facts

  • Brniks MAT Ltd v Elcombe
    [1988] 3 All ER 188

    Non-disclosure of material facts

  • WEA Records Ltd v Visions Channel 4 Ltd and others
    [1983] 2 All ER 589

    Non-disclosure of material facts

  • Republic v Kenya Medical Training College & another Ex-Parte Kenya Universities and Colleges Central Placement Service
    [2015] eKLR

    Non-disclosure of material facts

  • Kilima Limited & another v Samuel Ruto - Chairman & 21 others; Carewell Farmers Company Limited & another (Interested Parties)
    eKLR

    Parties must come to court with honesty and integrity; consequences of dishonesty

  • Shah v Mbogo and Another
    [1967] EA 116

    Wide and unfettered discretion to review and set aside ex parte decisions

  • Patel v E.A Cargo Handling Services Ltd
    [1974] EA 75

    No limits or restrictions on discretion to set aside ex parte judgment; main concern is doing justice

  • Wachira Karani v Bildad Wachira
    [2016] eKLR

    Sufficient cause is a question of fact; no strait-jacket formula

  • Michael Mowesley v Kazungu Sana Sana; Abdulrehman Mohamed Basheikh & 2 others (Interested Parties)
    [2022] eKLR

    Non-disclosure of material facts may warrant setting aside or varying an order

  • Margaret Wangui Karugu v John Njenga Karugu another
    2018 eKLR

    Orders obtained through material non-disclosure to steal a march will be discharged immediately

Jurisdiction invoked
Inherent discretion to review/set aside ex parte orders under Order 12 Rule 7 and Order 51 rule 15 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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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, "Karin Anne Challis (Suing through the Attorney Isaack Ntongai Samwel) v The Attorney General & 4 others", Case Analysis (2023). Environment & Land Case 18 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17195/eng@2023-05-05

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