Juliana Akumba (Suing on behalf of trustees of Franciscan Association of Kenya) v Official Liquidator of Cent Sacco Society (In Liquidation on Behalf of the Commissioner for Co-operative Society Developmen)t & another [2018] KEELC 4209 (KLR)

The suit properties East/Kisumu/Dago/515 and 516 were the subject of Kisumu ELC No.10 of 2015 and Kisumu HCCC No.8 of 2011 between the same parties. In its ruling of 19th April 2016 the court dismissed the injunction application as res judicata and struck out the suit as sub judice and an abuse of process. Conservatory orders serve the same purpose as temporary injunctions, so the issue had already been dealt with and the fresh application could not be entertained.

The court in its 19th April 2016 ruling had indicated the petitioners were at liberty to pursue their claim in the still-pending Kisumu HCCC No.8 of 2011. Instead, they filed fresh petitions on 28th September 2016 without disclosing the prior suits and orders. Such non-disclosure, by parties who could not claim ignorance of the previous cases, constituted an abuse of process contrary to Sections 1A, 1B and 3A of the Civil Procedure Act and Section 3 of the Environment and Land Court Act.

The court found no affidavit evidence demonstrating any infringement of the Petitioner's constitutional rights if the conservatory order was withheld. Since conservatory orders serve the same function as temporary injunctions, the court treated the question as already decided in the earlier litigation over the same subject matter.