George Mathenge & another (both suing as officials of Franciscan Family Association of Kenya) v Micro Enterprises Support Programme Trust Registered Trustees & another [2016] KEELC 976 (KLR)
The bottom line
#A Kenyan court struck out a duplicate land dispute suit and injunction application, confirming that borrowers cannot restart decided cases to stop a property sale.
What this practically means
#Executive summary
#Key legal issues
#Res judicata of the injunction application
The application dated 20th January 2015 is res judicata as the same issues were heard and determined in the ruling of 14th November 2012 in Kisumu HCCC No. 8 of 2011, which was never set aside, reviewed or appealed against.
Section 7 of the Civil Procedure Act bars trying a matter directly and substantially in issue in a former suit between the same parties. The Applicant had sought a similar injunction by notice of motion dated 7th February 2011 in Kisumu HCCC No. 8 of 2011, which was dismissed with costs on 14th November 2012. That ruling has not been set aside, reviewed or successfully appealed, so the same application cannot be re-litigated in a fresh suit.
Sub judice under Section 6 of the Civil Procedure Act
The suit is sub judice because Kisumu HCCC No. 8 of 2011, involving the same parties in the same capacities, the same subject matter and the same prayers, is still pending.
The absence of Cent Sacco Society Limited as a party in the new suit does not distinguish it from the 2011 suit; the parties, subject matter and prayers are the same, differing only in the dates of the advertised auction. The proper route was to pursue the claim in the pending suit. The Applicant also misled the court by asserting there had been no previous proceedings between the parties.
Whether the power of sale had arisen and injunction could issue
The 1st Respondent's power of sale had arisen and it was entitled to realise the securities; a disputed debt does not restrain a chargee.
Following the 2012 ruling, the Applicant was given opportunities to settle: an order to pay Kshs.500,000 by 10th February 2011 which it did not comply with, and a six-month moratorium from 25th February 2014 during which no payment was made. Authorities cited establish that a chargee is only restrained where the chargor has paid the whole amount claimed into court or completed redemption.
Abuse of process and conduct of the Applicant and counsel
Filing a fresh suit without disclosing the pending 2011 suit and obtaining interim orders was inequitable conduct amounting to abuse of the process of the court, warranting striking out of the suit.
Equity demands clean hands and full disclosure of all relevant facts. Section 1A(3) of the Civil Procedure Act places a duty on parties and advocates to assist the court further the overriding objective. Filing duplicative litigation while the 2011 suit is pending undermines timely disposal and efficiency, and the court invoked its inherent power under Section 3A to prevent the abuse.
Legal principles established
#- The principle of res judicata applies to interlocutory applications before the court.
- A chargee will not be restrained from exercising its power of sale merely because the amount outstanding is in dispute; the court will intervene only where the chargor has paid the whole amount claimed into court or completed redemption.
- Parties seeking equitable relief must make full disclosure of all relevant facts, including the existence of prior or pending proceedings, and must have clean hands.
- The court may exercise its inherent power under Section 3A of the Civil Procedure Act to strike out a suit that is sub judice and an abuse of the process of the court.
Court orders
#- 1.That the notice of motion dated 20th January 2015 is hereby dismissed with costs.
- 2.That the suit commenced by the Applicant through the plaint dated 20th January 2015 is hereby struck out with costs to the 1st Defendant.
- Jurisdiction invoked
- Environment and Land Court Act No. 19 of 2011; Civil Procedure Act Chapter 21 (Sections 1A, 1B, 3A, 6 and 7)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Mathenge & another (both suing as officials of Franciscan Family Association of Kenya) v Micro Enterprises Support Programme Trust Registered Trustees & another [2016] KEELC 976 (KLR)", Case Analysis (2016). Notice of motion dated 20th January 2015 (suit by plaint dated 20th January 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/976/eng@2016-04-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.