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ELCStruck OutCase No 24 of 2017· [2017] KEELC 685 (KLR)

Dorcas Mumo Mutua v Equity Bank Limited & 3 others [2017] KEELC 685 (KLR)

Environment and Land Court
9 November 2017
DOD. O. Ohungo
2,730 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court struck out a wife's attempt to stop a property sale, ruling she had already litigated the same issues and 2012 spousal consent rules didn't apply to a 2006 charge.

What this practically means

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Executive summary

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The plaintiff, wife of the 2nd defendant, moved the court by Notice of Motion dated 31st January 2017 under Sections 82(3) and 97 of the Land Act and Order 40 Rules 2 and 3 of the Civil Procedure Rules seeking a temporary injunction restraining the defendants from attaching, advertising, selling or disposing of parcel Nakuru Municipality Block 21/66 pending determination of her suit. She contended that her husband charged the matrimonial property to the 1st defendant to secure a KShs. 4,000,000 facility to the 3rd defendant without her spousal consent, and that auction notices and the advertised sale of 13th February 2017 were unlawful. The 1st and 4th defendants replied that no spousal consent was required when the 2006 charge was executed, that statutory power of sale had been properly exercised, and that the application was both res judicata and sub judice given three prior suits over the same property. The court framed four issues: sub-judice, res judicata, necessity of spousal consent, and whether the injunction should issue. It held the injunction question was sub judice in Nakuru HCC No. 172 of 2009 and Nakuru CMCC No. 1025 of 2011, and that the application was res judicata since the plaintiff litigated under her husband in the former suit where an identical injunction application had been dismissed on 10th December 2010, and the spousal consent issue could and ought to have been raised there. On the merits, relying on Fredrick Chege Ndogo, the court held that the spousal consent requirement under section 79(3) of the Land Act 2012, effective 2nd May 2012, had no application to the 2006 charge, so no prima facie case was established under Giella as sequenced in Nguruman. The application was struck out with costs to the 1st and 4th defendants only, and the suit was stayed pending the earlier proceedings.

Key legal issues

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01

Sub-judice under Section 6 of the Civil Procedure Act

Holding

The issue of whether an injunction should issue to restrain sale of the suit property was sub judice in Nakuru HCC No. 172 of 2009 and Nakuru CMCC No. 1025 of 2011, both filed earlier

Reasoning

The plaintiff conceded filing CMCC No. 1025 of 2011 involving the same parties, same subject matter and injunctive relief. The plaintiff in HCC No. 172 of 2009 was the plaintiff's husband, so she was litigating under him. Both earlier suits concerned the same parcel and injunction relief, and were filed before this suit.

p. 3
02

Res judicata under Section 7 of the Civil Procedure Act

Holding

The Notice of Motion dated 31st January 2017 was res judicata

Reasoning

The High Court had on 10th December 2010 dismissed an injunction application in HCC No. 172 of 2009 over the same property and relief, and the plaintiff litigated under that plaintiff. The guarantee and charge predated that suit, so the spousal consent issue could and ought to have been raised there under explanation (4) to section 7.

p. 4
03

Whether spousal consent was necessary for the charge

Holding

No spousal consent was required; the requirement came into force on 2nd May 2012 with the Land Act 2012, long after the 2006 charge

Reasoning

The guarantee was executed on 19th September 2006 and the charge dated 4th October 2006 and registered 11th October 2006. Section 79(3) of the Land Act 2012 introduced the spousal consent requirement effective 2nd May 2012. The Court of Appeal in Fredrick Chege Ndogo confirmed the requirement had no application to pre-2012 transactions.

p. 5
04

Merits of the injunction application under Giella v Cassman Brown

Holding

Even absent the res judicata finding, the application would fail because no prima facie case was established

Reasoning

The sole basis for opposing the statutory power of sale was absence of spousal consent, which the court held was not legally required in 2006. With no prima facie case, irreparable injury and balance of convenience need no consideration per Nguruman Limited v Jan Bonde Nielsen.

p. 5

Legal principles established

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  • The requirement of spousal consent to a charge was introduced by the Land Act 2012 and does not apply to charges registered before 2nd May 2012
  • A spouse litigating under a party to a former suit is bound by res judicata, and matters which might and ought to have been raised in the former suit are deemed to have been in issue
  • The Giella conditions are sequential, distinct hurdles; if no prima facie case is established, irreparable injury and balance of convenience need no consideration

Court orders

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  1. 1.Notice of Motion dated 31st January 2017 struck out with costs to the 1st and 4th defendants
  2. 2.No costs awarded to the 3rd defendant since his default triggered enforcement of statutory power of sale
  3. 3.No costs awarded to the 2nd defendant since he supported the application
  4. 4.The suit stayed pending hearing and determination of Nakuru HCC No. 172 of 2009 and Nakuru CMCC No. 1025 of 2011

Authorities

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Legislation

  • Land ActSections 82(3), 97, 79(3)
  • Civil Procedure RulesOrder 40 Rules 2 and 3
  • Civil Procedure ActSections 6, 7 (including explanations (4) and (6))
  • Land Registration ActGeneral reference

Cases cited (7)

  • M. Nagabhushana v. State of Karnataka & Ors.
    [2011] INSC 88
  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Fredrick Chege Ndogo v Bernard Njoroge Mbugua & another
    [2016] eKLR
  • Nakuru CMCC No. 1025 of 2011 Dorcas Mumo Mutua vs Equity Bank & Nathan Mutua Kolile
  • Nakuru CMCC No. 533 of 2012 Elizabeth Wanjir Evans vs Equity Bank
  • Nakuru HCC No. 172 of 2009 Nathan Mutua Kolile vs Equity Bank & Stephen Nzula Muli
Jurisdiction invoked
Inherent jurisdiction and Land Act, Sections 82(3) and 97; Civil Procedure Rules Order 40 Rules 2 and 3

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Dorcas Mumo Mutua v Equity Bank Limited & 3 others [2017] KEELC 685 (KLR)", Case Analysis (2017). Case No 24 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/685/eng@2017-11-09

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