[2023] KEELC 21833 (KLR)
The court found that the plaintiff failed to disclose the existence of a similar suit over the same subject matter, as required by Order 4 Rule 1(f) of the Civil Procedure Rules. This non-disclosure was deemed an abuse of court process. The court held that the application for a temporary injunction lacked merit and...
Source-derived case information.
- Citation
- [2023] KEELC 21833 (KLR)
- Parties
- Plaintiff: Faith Santo Nkoya; Defendant: African Banking Corporation Limited; Defendant: Moses Ole Nkuya
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E055 of 2022
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Injunction Application
- Outcome
- application dismissed with costs
- Judges
- MN Gicheru
- Legal Topics
- Interlocutory Injunctions, Non Disclosure of Material Facts, Spousal Consent in Land Transactions, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Faith Santo Nkoya
Plaintiff
African Banking Corporation Limited
Defendant
Moses Ole Nkuya
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff is entitled to a temporary injunction restraining the defendants from selling or dealing with the suit properties pending determination of the suit.
- 2 Whether failure to disclose the existence of a similar suit amounts to abuse of court process.
Ratio Decidendi
The court found that the plaintiff failed to disclose the existence of a similar suit over the same subject matter, as required by Order 4 Rule 1(f) of the Civil Procedure Rules. This non-disclosure was deemed an abuse of court process. The court held that the application for a temporary injunction lacked merit and dismissed it with costs, emphasizing the importance of candor and full disclosure in applications for interlocutory relief. The prior dismissal of a similar application in another court further undermined the plaintiff's case, and the court declined to grant the orders sought.
Court Disposition
application dismissed with costs
Orders
- The notice of motion dated 8/7/2022 is dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
21 paragraphs
Nkoya v African Banking Corporation Limited & another (Environment & Land Case E055 of 2022) [2023] KEELC 21833 (KLR) (29 November 2023) (Ruling)
Neutral citation: [2023] KEELC 21833 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case E055 of 2022
MN Gicheru, J
November 29, 2023
Between
Faith Santo Nkoya
Plaintiff
and
African Banking Corporation Limited
1st Defendant
Moses Ole Nkuya
2nd Defendant
Ruling
1. This ruling is on the notice of motion dated 8/7/2022. The motion which is brought under order 40 rules 1 and 2 Civil Procedure Rules among other provisions of the law seeks the following main prayer.4. A temporary injunction against the respondents, their representatives and or assignees restraining them from selling, auctioning, dealing with and in any way interfering with LR Kajiado/Lorngusua/2246 and 243 pending the hearing and determination of this suit.
2. The motion is supported by an affidavit sworn by the applicant, Faith Santo Nkoya, dated 5/7/2022 in which she deposes that her husband the second respondent conspired with the first respondent which is the bank to fraudulently and unlawfully charge the suit parcels without obtaining spousal consent. She is the spouse of the second respondent and she has learnt that the land is now up for sale for Kshs. 63, 070,000/- after her husband defaulted in servicing the loan that he obtained from the first respondent.
3. The motion is opposed by the first respondent and its legal manager Faith Nteere has sworn a replying affidavit dated 23/8/2022, in which she deposes, inter alia, that the applicant’s husband had an application similar to this dismissed at Milimani Commercial Court in HCCC No. 36 of 2019 in a ruling dated 15/7/2019. A copy of that ruling is annexed to the affidavit by the legal manager of the first respondent.
4. I have considered the application in its entirety and I find that it has no merit at all. The Plaintiff has failed to disclose the existence of a similar suit over the same subject matter as required by order 4 rule 1 (f) of the Civil Procedure Rules. This application is abuse of court process. I dismiss it with costs.
DATED SIGNED AND DELIVERED AT KAJIADO VIRTUALLY THIS 29TH DAY OF NOVEMBER 2023. M.N. GICHERUJUDGE