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ELCStruck OutMSA HCCC (as stated in judgment; suit number not reproduced in the excerpt provided)· [2015] KEELC 840 (KLR)

Kazungu v Kenya Commercial Bank Limited & another (Environment & Land Case 269 of 2014) [2015] KEELC 840 (KLR)

High Court of Kenya
8 December 2015
AOA. Omollo
1,831 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court struck out a Mombasa buyer's suit challenging a bank auction because the same dispute had already been decided in earlier cases.

What this practically means

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Executive summary

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The plaintiff sued the defendants seeking to bar any transactions over Plot No. 2830/1 Mainland North (the suit property) on the ground that its sale by public auction on 19th June 2008 to Gabriel Mutiso Maanda for Kshs. 2,800,000 was fraudulent, effected without notice, and at an undervalue compared with a claimed value of Kshs. 23,400,000. The property had been charged to secure a Kshs. 400,000 loan from the 1st defendant advanced in 1995. The defendants applied by Notice of Motion dated 10th March 2015 to strike out the suit as res judicata and an abuse of process, relying on two former suits: HCCC No. 508 of 2001, in which a counterclaim for Kshs. 2,278,271.36 was allowed by entry of judgment, and HCCC No. 245 of 2003, which was struck out as an abuse of process. The sole issue framed was whether the suit was res judicata. Applying section 7 of the Civil Procedure Act and the conditions set out in Francis Wamburu Njau v. Bernard Kagia Njuguna, the court found the parties identical, litigating under the same title before competent courts, and the subject matter - the sale of the suit property - directly and substantially in issue and decided in the former suits, including the question of notification before sale. The plaintiff had not appealed those outcomes. The court further held the suit an abuse of process because the challenged sale was in execution of a decree the plaintiff knew of and should have challenged through the prescribed avenue. The suit was struck out with costs to the defendant, and the defendant was also awarded costs of the application. Ruling delivered in Mombasa on 8th December 2015 by A. Omollo, J.

Key legal issues

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01

Whether the plaintiff's suit challenging the auction sale of the suit property is res judicata in light of HCCC No. 508 of 2001 and HCCC No. 245 of 2003

Holding

Yes. The parties and subject matter (the sale of the suit property) are the same, the parties litigated under the same title before competent courts, and the matters were heard and decided; the suit is also an abuse of process

Reasoning

The court scrutinised the pleadings in the two former suits and found the subject matter all along was the sale of the suit property by the 1st defendant through the 2nd defendant. Notification before sale had been raised and decided in Case No. 508 of 2001. The plaintiff did not appeal against those outcomes. The entire claim, however framed, concerns the sale, which was in execution of a decree; it should have been challenged through the proper procedural avenue, not a fresh suit.

p. 4
02

Whether the supporting affidavit sworn by the defendants' advocate on behalf of the clients renders the application defective

Holding

No finding; the court found no wrong in the affidavit since the advocate deposed to matters within his knowledge, and the plaintiff had not formally urged the point

Reasoning

The plaintiff cited East Africa Foundry Works (K) Ltd v. Kenya Commercial Bank Ltd on advocates deposing in contentious matters, but did not ask the court to find the application defective for that reason. The judge declined to render an opinion on the issue and, when ruling, found no wrong in the supporting affidavit.

p. 4

Legal principles established

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  • Where the challenged sale was in execution of a court decree of which the plaintiff was aware, a fresh suit challenging the sale is res judicata and an abuse of process; the decree should be challenged in the manner provided

Court orders

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  1. 1.The plaintiff's suit is struck out
  2. 2.Costs of the suit awarded to the defendant
  3. 3.Costs of the application awarded to the defendant

Authorities

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Legislation

  • Civil Procedure Act, Cap. 21section 7

Cases cited (6)

  • Judith Gathoni Willie v. George Kihara Muchuki & 2 Others
    [2010] eKLR
  • Eunice Wanjiru Gathithi v. Cannon Assurance Kenya Ltd
    [2012] eKLR
  • Francis Wamburu Njau v. Bernard Kagia Njuguna
    [2009] eKLR
  • M.W.K v. A.M.W
    [2015] eKLR
  • Kamunye & Others v. The Pioneer General Assurance Society Ltd
    (1971) E.A 263
  • East Africa Foundry Works (K) Ltd v. Kenya Commercial Bank Ltd
    [2002] 1 KLR
Jurisdiction invoked
Original civil jurisdiction of the High Court; the application decided under section 7 of the Civil Procedure Act, Cap. 21 (res judicata) and the court's inherent power to strike out abusive suits

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, "Kazungu v Kenya Commercial Bank Limited & another (Environment & Land Case 269 of 2014) [2015] KEELC 840 (KLR)", Case Analysis (2015). MSA HCCC (as stated in judgment; suit number not reproduced in the excerpt provided). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/840/eng@2015-12-08

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