MUIGAI & OTHERS v JOHN WAINAINA, JOHN GATHUMU & NZAU MWALIMU NZAU [2004] KEHC 138 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Case 346 of 2002

MUIGAI & OTHERS………………………....................................................……………..…..PLAINTIFF

-versus-

JOHN WAINAINA

JOHN GATHUMU

NZAU MWALIMU NZAU………………….....................................…………………….DEFENDANTS

R U L I N G

Before me is an application brought by way of Chamber Summons dated and filed on the 3rd March 2004 under Certificate of Urgency seeking, inter alia, to restrain the Plaintiffs/Respondents from interfering or in any way occupying the suit property until the final determination and disposal of the suit.  In addition to the two grounds upon which the application is founded, it is supported by the affidavit of the 3rd Defendant also made on the 3rd March 2004.  The application is opposed upon the grounds and matters deponed to in the Replying Affidavit of Robert Wamithi Mutahi made on the 4th March 2004.

In their application, the Defendants have failed to bring to the attention of the Court some very material facts disclosed in paragraphs 5 to 10 inclusive of the said affidavit of Robert Wamithi Mutahi and Mr. Amendi, their learned Counsel, was not able to offer any reasonable explanation as to why such facts were not disclosed nor why the Defendants did not deem it appropriate to draw the court’s attention to the Ruling of Rawal, J. dated the 11th April 2002.

I am grateful to Mr. Ngatia for the Plaintiffs for bringing these matters to my attention particularly as the original Court file is still at large despite diligent search.

Having considered the Application in conjunction with the submissions of respective Counsels, and the Defendants having failed to discharge their paramount duty “ to make a full and fair disclosure of all the material facts”pertaining to their application: R. -v- Kensington Income Tax Commissioners; PrincessEdmond de Polignac[1917] 86 LJKB 257, the Defendants are not entitled to the discretionary injunction sought.  I am also of the opinion that the subject application cannot succeed by reason of estoppel and res judicata the same issues having been determined in similar applications in Nairobi HCCC No. 897 of 2003 and also in Nairobi HCCC No. 661 of 203 (OS).  In making this finding, I adopt the well established principles of law enunciated in the Privy Council decision in Hoystead and Others -v- TaxationCommissioner [1925] All E. R.  Rep. 56 followed by one Court of Appeal inPop – In (Kenya) Ltd. and Three Others -v- Habib Bank  A. G. Zurich (Civil Appeal No. 80 of 1988) (unreported).

As this disposes of the application, it is not necessary to consider whether or not the Applicant has met the conditions for the granting of an injunction as laid down in Giella -v- Cassman Brown & Co. Ltd [1973] E. A. 358.

Accordingly, the application dated and filed on the 3rd March 2004 is dismissed with costs to the Plaintiffs/Respondents.

Dated and delivered at Nairobi this 16th day of April 2004.

P. Kihara Kariuki

Ag.  Judge