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ELCStruck OutKakamega High Court (ELC) Civil Suit - application dated 9th February 2015· [2017] KEELC 733 (KLR)

Joyce Minayo Keya v Keya Kigaga & 3 others [2017] KEELC 733 (KLR)

Environment and Land Court (High Court of Kenya), Kakamega
23 November 2017
7,209 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a wife's suit to stop a bank auction because the same dispute had already been decided in an earlier case.

What this practically means

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Executive summary

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By a notice of motion dated 9th February 2015, the plaintiff, the wife of the 1st defendant, sought a temporary injunction restraining the 3rd defendant bank and the 4th defendant auctioneer from exercising their statutory power of sale over Nandi/Koibarak 'B'/381 and Tiriki/Cheptulu/830, parcels she described as matrimonial property acquired jointly with her husband of about 50 years. She claimed the properties had been charged without her knowledge or consent to secure a Ksh. 13 million term loan advanced by the 3rd defendant to the 2nd defendant, Preston (K) Woods Ltd, and had been advertised for auction on 7th February 2015. The 3rd and 4th defendants opposed, asserting the loan had crystallised with arrears of over Ksh. 19.6 million, that the 1st defendant had willingly issued his titles as security, that the spousal-consent provisions of the Land Registration Act 2012 and Land Act 2012 did not apply retrospectively to charges registered in November 2011, that the plaintiff was not privy to the charge and lacked locus standi, and that the suit was res judicata, the same issues having been litigated and dismissed in Kakamega HCC No. 12 of 2013 (Preston Woods Ltd vs. Equatorial Commercial Bank Ltd & Another). Framing two issues - whether the suit was res judicata, and whether a prima facie case had been established - the court held that res judicata is a fundamental jurisdictional question to be resolved before the merits. It found the issues here were directly and substantially in issue in the former suit between the same parties or those claiming under them, that the plaintiff had known of the charge as at April 2013 and had not come to court with clean hands, and that the spousal-consent argument was a point that ought to have been raised in the earlier litigation. The suit and application were struck out with costs to the 3rd and 4th respondents.

Key legal issues

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01

Whether the suit was barred by res judicata

Holding

Yes. The issues of the threatened sale of the suit properties were directly and substantially in issue in Kakamega HCC No. 12 of 2013 between the same parties or parties claiming under them, and that suit's injunction application was heard and finally decided. The plaintiff was aware of the charge as at April 2013 and had not come to court with clean hands.

Reasoning

The court found it undisputed that the 2nd defendant had earlier sued the bank in Kakamega HCC No. 12 of 2013 seeking to restrain the sale of the same charged properties, and the injunction application was dismissed by Chitembwe J on 8th October 2014. The plaintiff's claim that she learned of the charge only in February 2015 was contradicted by her own pleadings in the earlier suit, which referred to the family being 'up in arms' over the threatened disposal. All matters that could have been raised there were deemed raised. Since res judicata goes to jurisdiction, the court could not entertain the merits.

p. 10
02

Whether spousal consent was required before the 2011 charge over the matrimonial home, entitling the plaintiff to an injunction

Holding

The court did not reach the merits because of the res judicata finding; the respondents had argued, and the record reflected, that the spousal-consent provisions (s.28(a) Land Registration Act 2012, s.79(3) Land Act) came into force in May 2012, after the charges were registered in November 2011, and could not apply retrospectively.

Reasoning

The parties' submissions addressed whether the plaintiff's consent was necessary. The respondents relied on the distinction between the repealed Registered Land Act Cap 300 (which required no spousal consent) and the Land Registration Act No. 3 of 2012, effective 2nd May 2012, after the charges were registered on 30th November 2011. The court declined to determine this, holding it lacked jurisdiction once res judicata was established.

p. 10

Legal principles established

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  • Res judicata is a fundamental jurisdictional issue that must be resolved before the merits are considered; where it applies, the court lacks jurisdiction to determine the merits of the subsequent suit.
  • Res judicata extends not only to issues actually determined in the former suit but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward.

Court orders

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  1. 1.The suit and the application dated 9th February 2015 struck out for being incompetent as they offend the principles of res judicata
  2. 2.Costs of the suit and application awarded to the 3rd and 4th respondents

Authorities

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Legislation

  • Civil Procedure ActCap 21, Sections 1A, 1B, 3, 3A, 6, 7, 63
  • Civil Procedure RulesOrder 40 Rules 1 & 2, Order 51, Order 39 Rule 1 (2010)
  • Land Act2012, Sections 78(1), 79(3), 103(1), 104(1)(iii)
  • Land Registration ActNo. 3 of 2012, Section 28(a)
  • Registered Land Act (repealed)Cap 300, Sections 28, 74
  • Matrimonial Property Act2013, Section 1(4)

Cases cited (13)

  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others
    {2003}
  • Pop In Kenya Ltd & 3 Others vs. Habib Bank A.G. Zurich
    C.A. No. 80 of 1988
  • Yat Tung Investment Co. Ltd vs. Dao Heng Bank Ltd
    (1975) AC 581
  • Henderson vs. Henderson
    (1843) 3 Hare 100 to 115
  • Giella vs. Cassman Brown
    (1973) EA 358
  • Nairobi Mamba Village vs. National Bank of Kenya
    Nairobi HCC No. 1838 of 2001
  • Gatobu M'Ibuutu Karatho vs. Christopher Muriithi Kubai
    (2014) eKLR
  • National Bank of Kenya Ltd vs. Pipeplastic Samkolit (K) Ltd & Another
    (2002) EA 503
  • John P.O. Mutere & Another vs. Kenya Commercial Bank Ltd
    HCC No. 3125 of 1995
  • Housing Finance Company of Kenya vs. Ngeye Kitson Mondo
    (2006) eKLR
  • ENW vs. PWM & 3 Others
    (2013) eKLR
  • John Omolo Oracha & 3 Others v Kenya Petroleum Refineries Ltd & 3 Others
    (2016) eKLR
  • Preston Woods Ltd vs. Equatorial Commercial Bank Ltd & Another
    Kakamega HCC No. 12 of 2013
Jurisdiction invoked
Inherent jurisdiction and Civil Procedure Act Cap 21 (Sections 1A, 3, 3A, 6, 7, 63) and Order 40 Rules 1 & 2, Order 51 of the Civil Procedure Rules 2010; Land Act 2012 Sections 78, 103(1), 104

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, "Joyce Minayo Keya v Keya Kigaga & 3 others [2017] KEELC 733 (KLR)", Case Analysis (2017). Kakamega High Court (ELC) Civil Suit - application dated 9th February 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/733/eng@2017-11-23

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