Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the extract (Plaint dated 10th August 2023)· [2025] KEELC 140 (KLR)

Hasmo Agencies Limited v National Social Security Fund (Land Case E052 of 2023) [2025] KEELC 140 (KLR)

Environment and Land Court
23 January 2025
2,825 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Nairobi court cancelled temporary land orders because the party who got them hid key facts, teaching everyone to be fully honest in court.

What this practically means

#

Executive summary

#
The Defendant, Board of Trustees of the National Social Security Fund, filed a Notice of Motion dated 19th August 2024 under Sections 3 and 3A of the Civil Procedure Act and Order 40 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, seeking to vacate interim injunction orders issued by the court on 15th August 2023 and confirmed on 23rd September 2023, and alternatively for an injunction restraining the Plaintiff, Hasmo Agencies Limited, from interfering with its use of a carpark comprising 455 parking bays along Kenyatta Avenue on five L.R. numbers. The Defendant contended the injunctions were obtained through material non-disclosure: the Plaintiff concealed that it had never been in possession of the suit property after expiry of its licence, and withheld the existence of an arbitral clause in the licence agreement. The dispute traces through multiple prior proceedings, including a BPRT judgment of 29th May 2020 granting vacant possession, adopted in Milimani Miscellaneous Case No. E358 of 2020, and quashed magistracy proceedings. The Plaintiff filed no response or submissions. The court applied the Brink's MAT v Elcombe principles on full and frank disclosure, found the Plaintiff's non-disclosure material, and set aside the orders of 15th August and 23rd September 2023. It declined to grant the Defendant's injunction at that stage, instead directing that both pending injunction applications be heard simultaneously and maintaining the status quo. Costs were awarded on the basis that each party bears its own costs. O. A. Angote J delivered the ruling virtually in Nairobi on 23rd January 2025.

Key legal issues

#
01

Whether the ex parte injunction orders of 15th August 2023 and 23rd September 2023 should be set aside for material non-disclosure

Holding

The orders were set aside because the Plaintiff failed to disclose that it had never been in possession of the suit property and withheld the existence of an arbitral clause in the licence agreement.

Reasoning

Order 40 Rule 7 confers a discretionary jurisdiction to discharge, vary or set aside injunction orders, which must be exercised judiciously. Applying Brink's MAT Ltd v Elcombe principles, the court found the Plaintiff claimed lawful possession when it had never had possession, and concealed the arbitral clause. The application was unopposed. The non-disclosure was material, justifying vacation of the orders.

p. 5
02

Whether the Defendant's injunction prayer should be granted

Holding

The injunction prayer was not granted; the court directed that it be heard simultaneously with the Plaintiff's pending application and maintained the status quo in the meantime.

Reasoning

Noting that the Plaintiff's own injunction application dated 10th August 2023 remained unheard, the court considered it appropriate that both injunction prayers be canvassed together on a later date, preserving the prevailing status quo pending those determinations. The Defendant thus succeeded only partially on its application.

p. 6

Legal principles established

#
  • A party who obtains an interlocutory injunction by concealment or misrepresentation of material facts is liable to have the injunction discharged on the application of the aggrieved party.
  • An applicant for ex parte relief owes a duty of full and frank disclosure of all material facts, including facts discoverable upon proper inquiry.
  • The court retains a discretion, even upon established material non-disclosure, to continue the order or remake it on terms rather than discharge it automatically.

Court orders

#
  1. 1.The orders of the court issued on 15th August, 2023 and 23rd September, 2023 be and are hereby vacated and or set aside.
  2. 2.The prevailing status quo to be maintained pending the hearing and determination of the applications for injunction.
  3. 3.Each party to bear its own costs.

Authorities

#

Legislation

  • Civil Procedure ActSections 3 and 3A
  • Civil Procedure Rules, 2010Order 40 Rule 7
  • Civil Procedure Rules, 2010Order 51 Rule 1

Cases cited (4)

  • James Juma Muchemi & Partners Ltd vs Barclays Bank of Kenya & Another
    Nairobi HCCC No.339 of 2011 (2012) eKLR
  • Ragui vs Barclays Bank of Kenya
    (2002) 1 KLR 647
  • Brink's MAT Ltd vs Elcombe & others
    [1988] 3 ALL ER 180
  • Coast Apparel EPZ Limited vs Mtwapa Epz Limited & I & M Bank Limited
    [2017] KEHC 4025 (KLR)
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act; Order 40 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Hasmo Agencies Limited v National Social Security Fund (Land Case E052 of 2023) [2025] KEELC 140 (KLR)", Case Analysis (2025). Not stated in the extract (Plaint dated 10th August 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/140/eng@2025-01-23

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