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ELCPartially AllowedELC 1401 of 2013 (consolidated with ELC 43 of 2014)· [2014] KEELC 50 (KLR)

Shimmers Plaza Ltd & another v National Bank of Kenya & 3 others [2014] KEELC 50 (KLR)

Environment and Land Court
11 December 2014
6,908 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~28 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ordered Shimmers Plaza to hand over its building to the buyer, Cape Suppliers, and threw out its remaining challenges.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court (Nyamweya J.) determines four consolidated Notices of Motion arising from the sale of Shimmers Plaza on L.R 1870/IX/1281, Westlands. Shimmers Plaza Ltd, the former registered owner and chargor to National Bank of Kenya Ltd, challenged the sale of the property to Cape Suppliers Ltd by private treaty in October 2013, alleging it breached status quo orders of the Court of Appeal issued on 26th September 2013, and sought review of earlier orders of this Court, declarations that the discharge of charge was a nullity, and temporary and mandatory injunctions. Cape Suppliers Ltd sought temporary and mandatory injunctions for possession as registered purchaser for Kshs.400 million. The court held that review of its earlier orders was not warranted as all parties had been heard and the orders rested on the Court of Appeal decision; that prayers duplicating those dismissed by Kimondo J. and on appeal were res judicata; and crucially, that it lacked jurisdiction to determine alleged disobedience of Court of Appeal orders, contempt lying before the court that granted them, with the matter already sub judice there. Shimmers Plaza Ltd was found to have no prima facie case, its applications being dismissed in their entirety. Cape Suppliers Ltd demonstrated a prima facie case as registered owner, with damages the only remedy available to Shimmers Plaza under section 99 of the Land Act. The court ordered Shimmers Plaza to give possession to Cape Suppliers, restrained it from interference, and directed police assistance, with costs in the cause.

Key legal issues

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01

Review of interlocutory orders

Holding

No sufficient ground for review was established under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules; the orders were made inter partes after hearing all parties

Reasoning

The court perused the record and found the orders of Gitumbi J. of 29th November 2013 and the status quo orders of 3rd March 2014 were made after all parties had argued the applications and after canvassing the very misrepresentation allegations now raised. The main determinant of the orders was the Court of Appeal decision, which no party had shown had been reviewed or overturned.

p. 7
02

Jurisdiction over alleged contempt of the Court of Appeal status quo orders

Holding

The ELC has no jurisdiction to determine whether Court of Appeal orders were disobeyed; contempt lies before the court that issued the orders, and the matter was already sub judice before the Court of Appeal

Reasoning

The status quo orders alleged to have been violated were granted by the Court of Appeal. Under the Judicature Act and the authority in Judicial Service Commission v Speaker of the National Assembly, contempt of such orders falls to that court. Shimmers Plaza had already filed contempt proceedings in the Court of Appeal, barring this Court under the sub judice rule.

p. 9
03

Temporary and mandatory injunctions sought by Shimmers Plaza Ltd

Holding

Shimmers Plaza Ltd failed to establish a prima facie case and its applications were dismissed

Reasoning

Shimmers Plaza's claim rested solely on the allegation that the sale breached the Court of Appeal status quo orders, an issue outside this Court's jurisdiction, and the Court of Appeal had dismissed its appeal and allowed the sale. Without a prima facie case, no temporary injunction could issue, and no special circumstances justified a mandatory injunction.

p. 9
04

Injunctions sought by Cape Suppliers Ltd

Holding

Cape Suppliers Ltd demonstrated a prima facie case as registered owner and was entitled to temporary and mandatory injunctions for possession

Reasoning

Cape Suppliers proved registration as owner and a loan facility repayable from the property, showing irreparable harm. As registered owner it was entitled to possession, and Shimmers Plaza's only remedy in respect of any irregularity in the sale was damages under section 99 of the Land Act, making this a clear case for a mandatory injunction.

p. 10
05

Res judicata

Holding

Prayers by Shimmers Plaza Ltd against National Bank of Kenya Ltd similar to those dismissed by Kimondo J. and the Court of Appeal were res judicata

Reasoning

Following Kimondo J.'s ruling of 27th January 2012 and the Court of Appeal judgment of 20th December 2013 dismissing Shimmers Plaza's appeal against that ruling, the court declined to entertain similar prayers restraining National Bank of Kenya from dealing with the suit property, as these had already been determined.

p. 6

Legal principles established

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  • The power to punish for contempt can only be exercised by the court which granted the orders alleged to have been disobeyed
  • A purchaser of charged land sold in exercise of a statutory power of sale is protected and the chargor's remedy is damages under section 99 of the Land Act

Court orders

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  1. 1.Shimmers Plaza Ltd to forthwith give possession of the property on Title No. I.R 55525, L.R 1870/IX/1281 (Shimmers Plaza) to Cape Suppliers Ltd pending hearing and determination of the consolidated suits or until further orders
  2. 2.Shimmers Plaza Ltd restrained from interfering with Cape Suppliers Ltd's occupation and possession of the suit property pending hearing and determination of the consolidated suits or until further orders
  3. 3.Prayers in Shimmers Plaza Ltd's Notices of Motion dated 19th November 2013 and 9th December 2013 in ELC 1401 of 2013 and 4th March 2014 in ELC 43 of 2014 denied
  4. 4.Officer in Charge of Parklands Police Station to assist in enforcement of and ensure compliance with the orders
  5. 5.Costs of the various Notices of Motion to be in the cause
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya (Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Shimmers Plaza Ltd & another v National Bank of Kenya & 3 others [2014] KEELC 50 (KLR)", Case Analysis (2014). ELC 1401 of 2013 (consolidated with ELC 43 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/50/eng@2014-12-11

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