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Court of AppealPartially AllowedCivil Appeal No. 36 of 1996· [1996] KECA 102 (KLR)

Uhuru Highway Development Limited v Central Bank of Kenya & 2 others

Court of Appeal of Kenya
12 November 1996
AAA. M. AkiwumiPhilip Kiptoo TunoiP. K. TunoiASA. B. Shah
11,178 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled you cannot keep re-filing the same injunction application in one case unless you have genuinely new facts you could not have found earlier.

What this practically means

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Executive summary

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Uhuru Highway Development Limited (UHDL) charged its Nairobi property (L.R. No. 209/9514, the Grand Regency Hotel) to secure Exchange Bank's Shs. 2.5 billion debt to the Central Bank of Kenya (CBK), alleging the charge was a stop-gap arrangement never to be enforced. After the High Court (Ole Keiwua, J) and this Court refused an injunction against the statutory sale, UHDL filed a second injunction application before Etyang, J, who held it was res judicata. UHDL appealed; the CBK and Mr. Pattni cross-appealed on the form of the order. The Court of Appeal (Akiwumi, Tunoi and Shah JJ.A) dismissed the appeal, holding that the general principles of res judicata apply to interlocutory applications within the same suit and that section 7 of the Civil Procedure Act is not exhaustive. Once an injunction application has been determined on the Giella v Cassman-Brown principles, a similar application cannot be brought absent new facts not discoverable with due diligence; none existed here. The suit was not a redemption suit since UHDL denied the validity of the charge and tendered no payment. The CBK's cross-appeal succeeded: the judge's observations authorising exercise of the statutory power of sale and directing the form of advertisement were obiter and could not form part of the formal order, as a court cannot authorise a statutory power of sale. Mr. Pattni's cross-appeal was dismissed. The Court directed the parties to conclude preliminaries within 60 days and the superior court to hear the suit on a day-to-day priority basis before a fresh judge, and warned advocates against filing repetitive applications.

Key legal issues

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01

Whether res judicata applies to interlocutory applications in the same suit

Holding

It does; the doctrine is not confined by section 7 of the Civil Procedure Act and applies by general principles of law to matters decided in the same suit, including interlocutory applications

Reasoning

Relying on the Privy Council in Ram Kirpal v Rup Kuari and Hook v Administrator-General, the court held that the binding force of interlocutory decisions rests on general principles of law, not merely on section 7. Section 89 of the Civil Procedure Act extends the Code's procedure to all civil proceedings, so interlocutory applications fall within the purview of 'suit'. Otherwise parties would go from judge to judge until they obtained suitable orders.

p. 7
02

Whether new facts justified a fresh injunction application

Holding

No; the alleged new facts were known to UHDL or its agents or could with reasonable diligence have been known before the second application

Reasoning

The correspondence, Agreements A, B and C and the Pan African Bank liquidation were all within the knowledge of Mr. Pattni and hence Mr. Vaya; the Public Accounts Committee proceedings were available before the second application and are not binding on courts. The second application could have been filed on 10th January 1996 when the facts deponed to were already known.

p. 10
03

Whether the suit was a redemption suit permitting unlimited applications

Holding

No; the plaint challenged the validity of the charge and did not tender or offer payment of the mortgage money

Reasoning

Section 60 of the Transfer of Property Act presupposes a valid mortgage and payment or tender of the mortgage money. UHDL called the charge null and void and could not simultaneously baptise the claim a redemption suit. Even in redemption suits there must be finality in regard to decisions on interlocutory applications.

p. 11
04

The CBK's cross-appeal on the form of the order

Holding

The learned judge's observations on the statutory power of sale and the movables were obiter and could not form part of the formal order

Reasoning

Etyang, J was dealing only with preliminary points on res judicata and had no mandate to decide merits. A court cannot authorise exercise of a statutory power of sale, and Pall, J had already ruled on the movables with no appeal against that decision. Order XX rule 6(1) requires the decree to accord with the judgment.

p. 13

Legal principles established

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  • The general principles of res judicata apply to interlocutory applications within the same suit; section 7 of the Civil Procedure Act is not exhaustive of the doctrine
  • Once an application for injunction within a suit has been heard and determined on the Giella v Cassman-Brown principles, a similar application cannot be brought unless there are new facts not earlier brought before court after exercise of due diligence
  • A party must come to court with all facts in support of its application in the first instance and cannot apply on insufficient facts hoping to file a further affidavit later
  • Courts cannot authorise the exercise of a statutory power of sale; they can only stop it if circumstances warrant
  • A redemption suit cannot be founded on a charge the mortgagor alleges is null and void; it presupposes a valid mortgage and payment or tender of the mortgage money

Court orders

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  1. 1.The appeal is dismissed with costs
  2. 2.The first respondent's (CBK's) costs shall be paid by the appellant
  3. 3.The cross-appeal by the CBK is allowed with costs payable to the first respondent by the appellant
  4. 4.Mr. Pattni's cross-appeal is dismissed with costs to be paid by Mr. Pattni to the CBK
  5. 5.The parties to conclude their preliminaries as regards issues within 60 days and the superior court to hear the suit on a day-to-day priority basis before any judge who has not previously handled the matter
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 29 of 1995
Jurisdiction invoked
First appeal to the Court of Appeal against an interlocutory ruling of the High Court (Court of Appeal Rules; Civil Procedure Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Uhuru Highway Development Limited v Central Bank of Kenya & 2 others", Case Analysis (1996). Civil Appeal No. 36 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/102/eng@1996-11-12

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