Webwak Tradelink Ltd v Diamond Trust Bank Ltd & another [2015] KEELC 195 (KLR)
The bottom line
#A Kenyan landowner lost his bid to stop a completed bank auction because courts refuse to relitigate issues already decided—and his real remedy is money damages.
What this practically means
#Executive summary
#Key legal issues
#Whether the application is res judicata
The application is res judicata and an abuse of court process because the same issues were conclusively determined by the court's ruling of 11th April 2014 in HCCC No. 5 of 2013
The Plaintiff had filed an earlier suit (HCCC No. 5 of 2013) against the 1st Defendant in which he sought identical injunctive relief over the same suit properties. That application was dismissed on 11th April 2014, with the court holding that the Plaintiff's recourse lay in damages under section 97(1)(b) of the Land Act. The Plaintiff relied on the same grounds in the present application and never appealed the earlier ruling, so the matter cannot be relitigated.
Whether the Plaintiff is entitled to an injunction against the completed auction sale
No; the Plaintiff's remedy is damages, which are ascertainable
The auction took place on 22nd October 2014 pursuant to the court's ruling permitting the sale. Since the security property's value and the chargor's loss are ascertainable, damages are an adequate remedy. The Plaintiff also had a statutory recourse under section 97(1)(b) of the Land Act to seek an order that the sale is void, which does not entail stopping a completed sale by injunction.
Legal principles established
#- A plaintiff whose recourse lies in damages cannot file a second suit seeking an injunction to stop a sale already dealt with by a prior ruling, as such a suit is res judicata and an abuse of court process
- Once a property is offered by the chargor as security, it becomes a commodity whose value is ascertainable and the chargor's loss is ascertainable even if the sale is later found improper or irregular
Court orders
#- 1.Dismissal of the Plaintiff's Application dated 30th October 2014
- 2.Costs of the application to the Defendants
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court (interlocutory application within HCCC No. 5 of 2013 matter)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Webwak Tradelink Ltd v Diamond Trust Bank Ltd & another [2015] KEELC 195 (KLR)", Case Analysis (2015). Malindi ELC No. 5 of 2013 (Application dated 30th October 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/195/eng@2015-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.