Tobias Onyango Kichula v Mathew Muok & another [2018] KEELC 3789 (KLR)
The bottom line
#The court struck out a guarantor's attempt to stop the sale of his land because the same dispute was already before another court.
What this practically means
#Executive summary
#Key legal issues
#Whether Section 6 of the Civil Procedure Act (sub judice doctrine) bars the present application
Yes - the suit property and the loan are directly and substantially in issue in the pending Migori CMCC No. 689 of 2016 between the same parties under the same title
The 1st defendant had sued the 2nd defendant in the Migori CMCC suit over the same loan of Ksh.1,200,000 secured by the plaintiff's charge over the same property, and a conditional order was issued on 19th January 2017. The plaintiff claims under the same title as the 1st defendant. The court therefore found the matter directly and substantially in issue in a pending suit between the same parties, triggering the Section 6 bar.
Whether the plaintiff satisfied the Giella v Cassman Brown conditions for a temporary injunction
No - the plaintiff did not demonstrate compliance with the conditional order of 19th January 2017 requiring payment of arrears within 90 days and continued monthly instalments
The court held that once property is offered as security for a bank loan it becomes a commodity for sale whose loss can be compensated in damages. The plaintiff, as surety, had to show he ensured the 1st defendant paid the arrears within 90 days of the CMCC order and continued paying instalments, which he did not. Having found the Section 6 bar, the application was unmerited.
Guarantor's obligations under a deed of guarantee and indemnity
A surety's liability to the full extent of his obligation arises where the principal debtor defaults after formal notice to pay
Relying on the Surgipharm and Lalji Karsan Rabadia authorities, the court held that the guarantor's liability crystallises upon default by the principal debtor who has been formally notified to pay, without need of prior recourse against the principal debtor. This informed the view that the suit property, having been charged, was a commodity for sale compensable in damages.
Legal principles established
#- Where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties or parties litigating under the same title, Section 6 of the Civil Procedure Act bars the court from proceeding
- A guarantor's liability arises upon default by the principal debtor who has been formally notified to pay the debt
- A contract of guarantee is an accessory contract by which the surety undertakes to ensure the principal performs the principal obligations
Court orders
#- 1.Struck out the plaintiff's application dated 31st July 2017
- 2.Vacated the interim orders issued on 31st July 2017 and extended on 3rd August 2017
- 3.Costs of the application to be in the cause
- Jurisdiction invoked
- Environment and Land Court Act, Section 19(1); Constitution Article 159(2)(d); objection raised under Article 165(5) of the Constitution and Section 6 Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tobias Onyango Kichula v Mathew Muok & another [2018] KEELC 3789 (KLR)", Case Analysis (2018). Plaint (Fast Track) dated 31st July 2017, Migori; Notice of Motion dated 31st July 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3789/eng@2018-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.