Joyce Nancy Kabiru v Faulu Micro-Finance Bank Limited & 2 others [2018] KEELC 2536 (KLR)
The bottom line
#A Kenyan court struck out a second land injunction bid, ruling you cannot re-argue the same application—even with new prayers—after losing the first one.
What this practically means
#Executive summary
#Key legal issues
#Whether res judicata under Section 7 of the Civil Procedure Act applies to interlocutory applications within the same suit
Yes. Following Uhuru Highway Development Ltd v Central Bank of Kenya, the wider principles of res judicata apply to applications within the suit, so a dismissed application cannot be renewed by a similar subsequent application.
The court relied on the Court of Appeal decision in Uhuru Highway Development Ltd v Central Bank of Kenya, which held that there must be an end to interlocutory applications of a similar nature, otherwise courts would be inundated by new applications after the original one was dismissed. That decision of a superior court is binding. The majority decision in Mburu Kinyua v Gachini Tuti was also noted.
Whether the new prayers for inhibition and status quo escape the res judicata bar
No. Under Explanation 4 of Section 7, matters which might and ought to have been raised earlier are deemed to have been directly and substantially in issue.
Although the prayers for inhibition and status quo were not in the earlier application dismissed on 16th June 2017, Explanation 4 of Section 7 deems matters that might and ought to have been made a ground of attack or defence to have been in issue. The court also invoked the Henderson v Henderson principle requiring parties to bring forward their whole case.
Legal principles established
#- The wider principles of res judicata apply to interlocutory applications within the same suit; there must be an end to interlocutory applications
- New prayers not raised in an earlier application do not defeat res judicata where they ought to have been raised (Explanation 4, Section 7 Civil Procedure Act)
- Parties must bring forward their whole case at the first opportunity and will not be permitted to reopen the same subject of litigation on matters omitted through negligence, inadvertence or accident
Court orders
#- 1.The plaintiff's Notice of Motion dated 28th September 2017 is struck out with costs to the 3rd defendant
- Jurisdiction invoked
- Order 40 Rules 1 and 2 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Section 68 of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joyce Nancy Kabiru v Faulu Micro-Finance Bank Limited & 2 others [2018] KEELC 2536 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2536/eng@2018-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.