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ELCDismissedNot stated in the extract· [2013] KEELC 2 (KLR)

Reinder Holdings Limited v Joshua Omino & 4 others [2013] KEELC 2 (KLR)

Environment and Land Court
19 December 2013
2,199 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Plaintiff applied by notice of motion dated 12th June 2013, under sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, for a temporary injunction restraining the 5th Defendant from exercising an alleged statutory power of sale over L.R. No. 209696 Malindi, or alternatively for preservation orders. The Plaintiff, through its Managing Director, claimed the property's title had been stolen and a charge dated 7th March 1995 fraudulently registered to secure a Kshs. 15,000,000 facility to the 3rd Defendant without the company's knowledge, resolution or seal. The 5th Defendant opposed, arguing the application was sub judice and res judicata given Nairobi HCCC No. 565 of 2006 and Civil Appeal No. 7 of 2011, and that it had already sold the property at public auction on 27th May 2011 to Rasik D. Shah for Kshs. 23,800,000. Angote J found the Applicant's own affidavits filed in the Court of Appeal proved knowledge of the appeal, which had since been withdrawn without explanation, making the application res judicata and an abuse of process. Further, the current registered owner of the property had not been joined, so any injunction would be futile. The court held no prima facie case was established and dismissed the application with costs to the 5th Defendant.

Key legal issues

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01

Res judicata / sub judice

Holding

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

Reasoning

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.

p. 4
02

Non-joinder of the registered owner

Holding

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

Reasoning

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.

p. 4
03

Prima facie case for injunction

Holding

The Applicant failed to establish a prima facie case with a chance of success

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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

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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, "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.