Enock Ptinek Manyu v Jamii Bora Bank Limited [2017] KEELC 494 (KLR)
The bottom line
#A landowner sued over a second bank sale notice was told to use his earlier case, which the court consolidated instead of striking out.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit offends section 6 of the Civil Procedure Act
Yes. The matters in issue in this suit are directly and substantially in issue in the previously instituted Nakuru CMCC No. 929 of 2015, between the same parties, with identical prayers.
The plaintiff owned up that CMCC No. 929 of 2015 existed between the same parties and had annexed its pleadings. The court perused the pleadings and found the prayers in both suits identical, and that the order extracted on 3rd September 2015 was virtually a replica of prayer (c) of the present application. The earlier suit having been instituted first, section 6 was breached.
Whether the suit is an abuse of the court's process
No. In the unique circumstances, the plaintiff was not faulted because the subordinate court proceedings were stayed by matters beyond his control.
The court took judicial notice of the general paralysis in subordinate courts over land matters following the High Court decision in Malindi Law Society, which was set aside by the Court of Appeal on 19th October 2017. Declaring the suit an abuse of process would offend Article 159(2) of the Constitution and leave the plaintiff without a remedy against the new notice of sale dated 17th June 2017.
Whether an injunction should issue as prayed
The injunction application was overtaken by the transfer and consolidation orders; the parties were instead directed to abide by the interim orders of 3rd September 2015 in CMCC No. 929 of 2015.
Rather than rule on the injunction merits, the court disposed of the matter by transferring the suit to the Chief Magistrate's Court Nakuru and consolidating it with the earlier suit, preserving the status quo through the existing orders of 3rd September 2015 pending further orders of the subordinate court.
Legal principles established
#- Where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties, the later suit offends section 6 of the Civil Procedure Act.
- A breach of section 6 of the Civil Procedure Act does not automatically render a suit an abuse of court process where the filing was occasioned by circumstances beyond the litigant's control.
Court orders
#- 1.This suit is hereby transferred to Chief Magistrate's Court Nakuru for hearing and determination and is hereby consolidated with Nakuru CMCC No. 929 of 2015. The lead file shall be CMCC No. 929 of 2015.
- 2.The Chief Magistrates Court Nakuru to proceed to expeditiously hear and determine the consolidated suit and pending applications.
- 3.Pending further orders of the subordinate court, parties to abide by the orders issued on 3rd September 2015 in CMCC No. 929 of 2015.
- 4.Costs in the cause.
- Jurisdiction invoked
- Order 40 rule 1 of the Civil Procedure Rules; sections 6 and 63 of the Civil Procedure Act (transfer and consolidation powers)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Enock Ptinek Manyu v Jamii Bora Bank Limited [2017] KEELC 494 (KLR)", Case Analysis (2017). Nakuru CMCC No. 929 of 2015 (related suit); Notice of Motion dated 23rd June 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/494/eng@2017-12-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.