Agnes Awinja Okongo v K-Rep Bank Ltd [2016] KEELC 873 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a repeat injunction application as an abuse of process, but stayed rather than dismissed the main suit.
What this practically means
#Executive summary
#Key legal issues
#Whether the notice of motion dated 9th February 2016 is res judicata
Yes - it seeks orders similar to those in a notice of motion dated 23rd October 2013 dismissed on 10th December 2015 in Kisumu ELC No.294 of 2013 between the same parties in the same capacities
Section 7 of the Civil Procedure Act embodies the doctrine of res judicata. The earlier application between the same parties was dismissed by a ruling of 10th December 2015 which remains unchallenged on appeal or review. Re-litigating the same reliefs offends Section 7 and constitutes an abuse of process, so the preliminary objection was upheld and the application struck out.
Whether the dismissal of Kisumu CMCC No.452 of 2009 and Kisumu HCCA No.138 of 2010 rendered the suit res judicata
No - those matters were dismissed for lack of jurisdiction and on appeal, not on the merit
The Magistrate in CMCC No.452 of 2009 declined jurisdiction under Section 159 of the then Registered Land Act and the ensuing appeal was dismissed. Since the issues were not decided on merit, those decisions do not create res judicata, consistent with Lilian Njeri Muranja & another v Virginia Nyambura & another (2014) eKLR.
Whether the main suit is res judicata or should be stayed
The main suit is not res judicata because the main suit in Kisumu ELC No.294 of 2013 is still pending; it should be stayed under Section 6 of the Civil Procedure Act
The Defendant did not avail proof that the main suit in Kisumu ELC No.294 of 2013 had been finally determined. Absent a final decision, res judicata under Section 7 is not established. However, since the issues in the two suits must be similar, the present suit must await the outcome of the earlier suit under Section 6.
Legal principles established
#- A decision dismissing an application for lack of jurisdiction is not a decision on the merit and does not found res judicata
- Issues decided in an unchallenged ruling between the same parties in the same capacities cannot be raised again in a fresh application, which offends Section 7 of the Civil Procedure Act
- Where a prior suit between the same parties remains pending and undetermined, a later similar suit should be stayed under Section 6 of the Civil Procedure Act rather than dismissed as res judicata
Court orders
#- 1.The Defendant's preliminary objection in respect of the notice of motion dated 9th February 2016 is upheld and the application is struck out with costs
- 2.The status quo order issued on 17th February 2016 is vacated
- 3.The main suit is stayed in terms of Section 6 of the Civil Procedure Act pending the hearing and determination of Kisumu ELC No.294 of 2013
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; Civil Procedure Act (Sections 6 and 7)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Agnes Awinja Okongo v K-Rep Bank Ltd [2016] KEELC 873 (KLR)", Case Analysis (2016). null (case number not printed in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/873/eng@2016-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.