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ELCStruck OutELC Case No. 615 of 2013 (formerly HCCC No. 172 of 2009)· [2018] KEELC 3508 (KLR)

Nathan Mutua Kolile v Equity Bank Limited & another [2018] KEELC 3508 (KLR)

Environment and Land Court
16 March 2018
2,463 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a property owner's attempt to stop an Equity Bank auction because he had already lost the same fight years earlier.

What this practically means

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Executive summary

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By Notice of Motion dated 20th February 2018, the plaintiff, registered proprietor of LR No. Nakuru Municipality Block 21/66, sought a prohibition order restraining the 1st defendant bank from disposing of, transferring, alienating, developing or interfering with the property pending hearing of the suit. He had charged the property to secure a loan of KShs 1,200,000 advanced to the 2nd defendant and had executed a letter of guarantee; he alleged the loan had been repaid to the tune of KShs 3,297,138, yet a Notification of Sale had been issued for an auction scheduled for 16th March 2018. The 1st defendant raised a preliminary objection that the application was res judicata in view of a ruling of 10th December 2010; the 2nd defendant likewise relied on res judicata, including the ruling of 9th November 2017 in Nakuru ELC Case No. 24 of 2017 (Dorcas Mumo Mutua v Equity Bank Limited & 3 others) filed by the plaintiff's wife, which had dismissed a similar application as res judicata and stayed that suit. Applying section 7 of the Civil Procedure Act and the John Florence Maritime Services decision, Ohungo J held that the question of an interlocutory injunction over the suit property had been conclusively determined on 10th December 2010 by Ouko J, and that matters pleaded in the amended plaint were matters the plaintiff might and ought to have pleaded from the onset under Explanation (4) to section 7. The application was found to be res judicata and an abuse of process, and was struck out with costs to the defendants, with directions to be given for the progress of the main suit.

Key legal issues

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01

Whether res judicata under section 7 of the Civil Procedure Act bars the plaintiff's application

Holding

The application is res judicata. The question whether an interlocutory injunction could issue against the defendants was heard and conclusively determined on 10th December 2010 by Ouko J, and the plaintiff's wife's similar application in ELC No. 24 of 2017 had also been dismissed as res judicata on 9th November 2017.

Reasoning

The court applied section 7 of the Civil Procedure Act, noting that a 'suit' includes an application. The same parties litigating under the same title had sought the same injunctive relief over the same property, and a competent court had heard and determined it. Explanation (4) deems matters that might and ought to have been raised in the former suit to have been in issue, so the amended plaint could not revive determined issues. The plaintiff and his wife had engaged in a plethora of litigation over the same issue, which had to stop.

p. 3
02

Whether the application was an abuse of the court's process

Holding

Yes. Filing the present application barely three months after the court had declined an injunction and stayed ELC No. 24 of 2017 was not a coincidence and amounted to an abuse of process.

Reasoning

The court observed that the plaintiff and his wife had been engaging the defendants and the courts in a plethora of litigation over the same issue. The same court had, on 9th November 2017, declined to grant an injunction to stop the auction sale and had stayed ELC No. 24 of 2017 pending this case. The plaintiff was instead directed to set the main suit down for hearing.

p. 3

Legal principles established

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  • An interlocutory issue such as an injunction application, once heard and finally determined by a competent court, cannot be reintroduced in the same suit even through extensive amendment of the plaint; such matters are deemed to have been in issue under Explanation 4 to section 7 of the Civil Procedure Act
  • If litigants were permitted to amend pleadings to reintroduce issues already determined, the mischief res judicata aims to stop would reign

Court orders

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  1. 1.Notice of Motion dated 20th February 2018 struck out with costs to the defendants

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Civil Procedure Actsection 2 (definition of 'suit')
  • Civil Procedure Actsection 7, Explanation (4)

Cases cited (3)

  • John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others
    [2015] eKLR
  • Henderson v Henderson
    [1843] 67 ER 313
  • Dorcas Mumo Mutua v Equity Bank Limited & 3 others
    [2017] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (suit transferred from the High Court as HCCC No. 172 of 2009 and renumbered ELC Case No. 615 of 2013)

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, "Nathan Mutua Kolile v Equity Bank Limited & another [2018] KEELC 3508 (KLR)", Case Analysis (2018). ELC Case No. 615 of 2013 (formerly HCCC No. 172 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3508/eng@2018-03-16

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