Reinder Holdings Limited v Joshua Omino & 4 others [2013] KEELC 2 (KLR)
The bottom line
#A landowner who lost an earlier case and withdrew its appeal cannot restart the same fight in a new court application, especially after the property has been sold.
What this practically means
#Executive summary
#Key legal issues
#Res judicata / sub judice
The application was res judicata and an abuse of process because the same issues had been litigated in Nairobi HCCC No. 565 of 2006, whose dismissal by Koome J was under appeal in Civil Appeal No. 7 of 2011, which the Applicant then withdrew without explanation
The court found it undisputed that the Applicant had sought identical injunctive orders in HCCC No. 565 of 2006, which Kihara J granted before the suit was dismissed for want of prosecution by Koome J. The Applicant's own affidavits in the Court of Appeal showed knowledge of the appeal. Having withdrawn the appeal, the Applicant offered no reason for filing a fresh suit instead, rendering the present application res judicata and abusive.
Non-joinder of the registered owner
Even apart from res judicata, the application would fail because the current registered owner of the suit property (Rasik D. Shah, the auction purchaser) was not joined
The 5th Defendant had annexed the sale documents showing the property was auctioned on 27th May 2011 and sold to Rasik D. Shah for Kshs. 23,800,000. The Applicant knew of the sale by June 2011 from its own affidavit in the Court of Appeal. Since an injunction would affect the third party's registered interest, his absence from the suit meant the court could not grant effective relief.
Prima facie case for injunction
The Applicant failed to establish a prima facie case with a chance of success
Because of the res judicata finding and the sale of the property to a third party whose interest could not be disturbed in his absence, the Applicant could not demonstrate a prima facie case warranting injunctive or preservation orders. The court accordingly dismissed the application with costs.
Legal principles established
#- A court does not issue orders in vain; where the suit property has been sold to a third party who is not joined, injunctive relief would serve no purpose
- A subsequent suit raising the same issues as a previously dismissed suit (whose appeal was withdrawn) is res judicata and an abuse of the court process
Court orders
#- 1.Dismissal of the Plaintiff's Application dated 12th June 2013 with costs to the 5th Defendant
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Reinder Holdings Limited v Joshua Omino & 4 others [2013] KEELC 2 (KLR)", Case Analysis (2013). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/2/eng@2013-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.