[2002] KEHC 574 (KLR)
The court found that the applicant failed to disclose material facts, including previous applications and a consent order that was not complied with. The court emphasized that equitable remedies are not available to parties who approach the court without full disclosure of relevant facts. The notice of public...
Source-derived case information.
- Citation
- [2002] KEHC 574 (KLR)
- Parties
- Plaintiff: Bank of Credit & Commerce International (Overseas) Limited; Defendant: Sun Produce Exporters Limited; Defendant: Philip Arap Kirui; Defendant: Stanley K. Kurgat; Defendant: Cecilia Nduta Kabaya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 3154 of 1989
- Procedural Posture
- Civil Suit / Ruling on Application to Stop Public Auction
- Outcome
- application dismissed
- Legal Topics
- Equitable Remedies, Non Disclosure of Material Facts, Statutory Power of Sale, Enforcement of Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bank of Credit & Commerce International (Overseas) Limited
Plaintiff
Sun Produce Exporters Limited
Defendant
Philip Arap Kirui
Defendant
Stanley K. Kurgat
Defendant
Cecilia Nduta Kabaya
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Stop Public Auction
Legal Issues
- 1 Whether the applicant is entitled to an order stopping the public auction of the property despite non-disclosure of material facts.
- 2 Whether the notice of public auction is invalid due to alleged absence of statutory power of sale.
Ratio Decidendi
The court found that the applicant failed to disclose material facts, including previous applications and a consent order that was not complied with. The court emphasized that equitable remedies are not available to parties who approach the court without full disclosure of relevant facts. The notice of public auction, even if procedurally challenged, was not sufficient to justify stopping the sale in light of the applicant's conduct and the unsatisfied decree. The court relied on the principle that non-disclosure disentitles a party from equitable relief, and thus dismissed the application to stop the auction.
Court Disposition
application dismissed
Orders
- The application to stop the public auction is dismissed.
- No order as to costs; the decree holder may proceed with the auction.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA
AT NAIROBI H.C. CIVIL SUIT NO. 3154 OF 1989
BANK OF CREDIT & COMMERCE
INTERNATIONAL (OVERSEAS) LIMITED …….....……… PLAINTIFF
BANK OF CREDIT & COMMERCE
INTERNATIONAL (OVERSEAS) LIMITED.......................PLAINTIFF
V E R S U S
SUN PRODUCE EXPORTERS LIMITED ...........FIRST DEFENDANT
PHILIP ARAP KIRUI………..…………..…… SECOND DEFENDANT
STANLEY K. KURGAT………...……...………… THIRD DEFENDANT
CECILIA NDUTA KABAYA ...……..………… FOURTH DEFENDANT
R U L I N G
This is an application by the Judgment Debtor against whom decree is pending since 1991. The application is really brought under the ground that the notice of public auction is made under the statutory power of sale which is not in existence and thus the notice is bad in law. That may be so and I shall not go into the details whether it is just a semantic or the procedural defect. What I have noticed is that the applicant has come before this court without disclosing the material facts arising to the result of the public auction of his property. He has definitely come at the 11th hour of the sale despite the earlier notification. The notice in question was published in the News paper (name not disclosed) on 21st February, 2002.
The applicant has also filed an earlier application of 14th December, 1999 to stop the sale of the very property which culminated into the consent order extracted on 9th March, 2000. Obviously the payment as per consent order is not made and hence the public auction.
There has been settlement of the terms of the sale of the property by the court itself. The applicant has been aware of all the previous proceedings in the matter.
All these material facts are not disclosed in this application. As per the dicta of Caltex Oil’s case, it is clear that the applicant who seeks to get an ex-parte order has to disclose all the relevant facts to entitlement of an equitable remedy. The court shall not grant the equitable remedy to the applicant who does not disclose those facts and looses that right despite the fact that he could have been successful in the final event. Here is the case where the Decree holder has the unsatisfied decree over a long time.
The applicant intends to resurrect the dead body. In view of the circumstances, aforesaid, I think this court shall not be justified in granting the application. The application is dismissed but I shall not order the costs as the decree holder in any event shall proceed with the auction.
Dated and delivered at Nairobi this 22nd day of March, 2002.
K. H. RAWAL
JUDGE.