Bao Investments & Office Management Services Ltd v Housing Finance Co of Kenya Ltd [2006] KECA 168 (KLR)
The bottom line
#The Court of Appeal refused to protect a borrower's property because the borrower hid earlier lawsuits from the court when seeking an emergency injunction.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the intended appeal is arguable
- 2.Whether, if successful, the intended appeal would be rendered nugatory unless an injunction is granted
Key legal issues
#Whether an applicant who withholds material facts about previous proceedings between the parties can obtain injunctive relief under rule 5(2)(b)
No. Non-disclosure of previous suits and earlier failed injunction applications on the same facts misled the court into granting an ex parte temporary injunction; the court may, for its own protection, refuse to examine the merits.
The applicant had twice been refused injunctions and had withdrawn its earlier suit, yet filed a fresh suit without disclosing that history, contrary to Order VII rule 1(1)(e). It obtained an ex parte temporary injunction on facts it withheld. Relying on R. v. Kensington Income Tax Commissioners, the court held that a party who misleads the court forfeits equitable relief; the respondent was justified in submitting the application was an abuse of process.
Whether the intended appeal was arguable
No triable issue was disclosed. The application before Mwera J. was on the same facts and terms as the earlier one dismissed by Commissioner of Assize Birech.
The applicant conceded it was improper to withdraw the earlier suit and file a fresh one, but argued a serious point of law on the charge instrument certificates remained unresolved. The court found the applicant did not deny withholding material facts, and that the application before Mwera J. was on the same facts and terms as the earlier one; consequently, no arguable point was shown and the nugatory limb need not be considered.
Legal principles established
#- An applicant under rule 5(2)(b) must show both that the appeal or intended appeal is arguable and that, unless relief is granted, the appeal if successful will be rendered nugatory.
- Where an ex parte order is obtained on an affidavit that does not candidly and fairly state the facts, the court may refuse to proceed further with the merits; the power is inherent in the court.
- A plaintiff must disclose previous proceedings between the parties over the same subject matter as required by Order VII rule 1(1)(e) of the Civil Procedure Rules; failure to do so disentitles the party to equitable relief such as an injunction.
Court orders
#- 1.Dismissal of the notice of motion lodged in the Court on 21st June 2006 seeking an injunction restraining the respondent from selling Kisumu Block 8/14
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C.C. No. 75 of 2005
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (original jurisdiction to grant injunctions pending appeal)
Relief refused
#Injunction restraining the respondent from selling property known as Kisumu Block 8/14 pending the hearing of the suit and intended appeal
The applicant failed to disclose previous proceedings between the parties and the application disclosed no triable issue; the court did not proceed to consider nugatory-ness
Costs
Application dismissed with costs to the respondent in the application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
An applicant is obligated to show, firstly, that his appeal or intended appeal is arguable. And secondly, that unless he is granted an injunction or stay as the case may be, his appeal or intended appeal, if successful, will be rendered nugatory.
the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived.
In the result we dismiss the application lodged in the Court on 21st June, 2006, with costs to the respondent in the application.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bao Investments & Office Management Services Ltd v Housing Finance Co of Kenya Ltd [2006] KECA 168 (KLR)", Case Analysis (2006). Civil Application No. 171 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/168/eng@2006-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.