[2013] KEHC 5807 (KLR)
The court found that the ex parte orders were obtained by the plaintiff through non-disclosure of material facts, specifically the surrender of title and transfer of the suit property to a third party, and the forfeiture of monies paid. The absence of any opposition or explanation from the plaintiff reinforced the...
Source-derived case information.
- Citation
- [2013] KEHC 5807 (KLR)
- Parties
- Plaintiff: Tariq Bamahriz; Defendant: Aliya Salim Soud; Defendant: Brittany Holdings Ltd.; Defendant: Balala & Abed
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 14 of 2013
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Ex Parte Orders and Strike Out Suit
- Outcome
- Ex parte orders set aside; application to strike out suit declined at this stage.
- Judges
- GO Shikwe
- Legal Topics
- Ex Parte Orders, Non Disclosure of Material Facts, Setting Aside Orders, Striking Out Suit, Transfer of Property, Costs in the Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tariq Bamahriz
Plaintiff
Aliya Salim Soud
Defendant
Brittany Holdings Ltd.
Defendant
Balala & Abed
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Ex Parte Orders and Strike Out Suit
Legal Issues
- 1 Whether the ex parte orders granted to the plaintiff should be set aside for non-disclosure of material facts.
- 2 Whether the suit should be struck out for being incompetent.
Ratio Decidendi
The court found that the ex parte orders were obtained by the plaintiff through non-disclosure of material facts, specifically the surrender of title and transfer of the suit property to a third party, and the forfeiture of monies paid. The absence of any opposition or explanation from the plaintiff reinforced the conclusion that the orders were improperly obtained. The court held that had these facts been disclosed, the ex parte orders would not have been granted. Consequently, the court set aside the ex parte orders made against the 1st and 2nd defendants. The court declined to strike out the suit at this stage, indicating that such a prayer could be addressed through a substantive...
Court Disposition
Ex parte orders set aside; application to strike out suit declined at this stage.
Orders
- Ex parte orders made against the 1st and 2nd defendants on 22nd February, 2013 are set aside.
- Prayer to strike out the suit is declined at this instance.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 14 OF 2013
TARIQ BAMAHRIZ ….................................................PLAINTIFF
VERSUS
ALIYA SALIM SOUD & 3 OTHERS ….................DEFENDANTS
RULING
The Notice of Motion Application dated the 7th day of March, 2013 is premised on Section 1A, 1B and 3A of the Civil Procedure Act and order 40 rule 7 of the Civil Procedure Rules.
It seeks orders for setting aside exparte orders granted to the Applicant/Plaintiff against the 1st and 2nd Defendants on 22nd February, 2013.
It also seeks for orders that the suit be struck out for being incompetent.
The grounds are that the Applicant deliberately lied to Court and withheld material facts and information thus misleading the Court into granting exparte orders.
In that he failed to disclose to the Court that he had relinquished any claim he had in the suit property when on 12th October, 2012 the Applicant through his Advocate surrendered the title to the suit property, the transfer executed in favour of the Applicants company Brittany Holdings Ltd. together with all other completion documents.
It is further conceded that the Applicant was at all times aware that after the surrenderer of the said documents the property had been sold to a third party and possession of the same given to the said third party.
The 1st and 2nd Defendants transferred the said property to the third party on 31st January, 2013 when all the documents were released to the third partys Advocate Balala & Abed further that the applicant had forfeited to the 1st and 2nd Defendants all monies paid on account of the purchase price by agreement between the Applicant and the 1st and 2nd Defendants.
I have perused the file and I am satisfied that the Respondents in this application were duly served. There are two affidavits of service. One by the process server and the other by the Advocate for the Defendants and several annextures to that effect. There are no grounds in opposition filed nor a replying affidavit.
It is evidently clear that the exparte orders obtained were through non-disclosure of material facts as alluded by the Respondents in this application . Had they been disclosed to the Court these orders could not have been granted.
I accordingly set aside the exparte orders made against the 1st and 2nd Defendants on 22nd February, 2013.
I decline to grant prayer 4 at this instance.
Same can be dealt with by way of a substantive formal application or by agreement of parties to have the matter referred to the Environment and Lands Court.
Costs in the cause.
Ruling dated and delivered in open Court this 24th day of June, 2013.
In the presence of:-
Mr. Kariuki for 1st and 2nd Defendant
…....................
M. MUYA
JUDGE
24TH JUNE, 2013