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ELCDismissedNot stated in judgment (Notice of Motion dated 30th April, 2020)· [2020] KEELC 1650 (KLR)

Sokono Ene Yonko v Moses Shonko & 3 others [2020] KEELC 1650 (KLR)

Environment and Land Court
9 July 2020
1,660 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner trying to stop a property auction a second time lost because you cannot re-argue the same request after a court has already refused it.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor and occupier of land parcel KJD/OLCHORO ONYORE/19863, moved the court by Notice of Motion dated 30th April 2020, under sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, seeking a temporary injunction to restrain the Defendants from selling or disposing of the suit land by public auction or private treaty pending the hearing of the suit. She argued that the Defendants' statutory power of sale had not crystallised as she was not indebted to them, that they were exploiting the COVID-19 pandemic to advertise the auction scheduled for 5th May 2020, and that the sale would breach the doctrine of lis pendens as the matter was set for pre-trial directions. The 2nd Defendant opposed through grounds of submission that the application was res judicata, frivolous, and an abuse of process designed to block its statutory power of sale. The court framed a single issue: whether the Plaintiff was entitled to a temporary injunction. Applying section 7 of the Civil Procedure Act and the wider res judicata principles governing interlocutory applications, the court held the application res judicata, an earlier application of 1st October 2019 seeking identical relief having been dismissed on 17th December 2019, rendering it an abuse of process. The doctrine of lis pendens was held inapplicable absent subsisting injunctive orders. The Plaintiff having failed to establish a prima facie case under Giella v Cassman Brown and Nguruman, the remaining conditions fell away. The application was dismissed with costs.

Key legal issues

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01

Whether the application is res judicata

Holding

It is; a prior application dated 1st October 2019 seeking the same injunctive relief was heard and dismissed on 17th December 2019

Reasoning

The court applied section 7 of the Civil Procedure Act and the Uhuru Highway/Margaret Njoki Migwi line of authority holding that res judicata principles extend to interlocutory applications within the same suit. The earlier application sought to restrain the same Defendants from selling the same land and was dismissed on 17th December 2019, so the fresh application was an abuse of process.

02

Whether the doctrine of lis pendens barred the sale

Holding

It did not; the doctrine is unavailable where no injunctive orders barring the sale exist

Reasoning

Relying on Joseph M Mbuva v Pioneer Building Society Limited, the court held that lis pendens did not assist the Plaintiff because at the time of the advertised auction there were no subsisting orders restraining the 2nd Defendant from selling the suit land, the earlier injunction application having been dismissed.

p. 3
03

Whether the Plaintiff established a prima facie case with a probability of success

Holding

She did not; the first Giella condition failing, the other conditions were not considered

Reasoning

Applying Giella v Cassman Brown and Nguruman Ltd v Jan Bonde Nelson, the court found that the conditions are sequential hurdles. Having failed at the first stage of establishing a prima facie case with a probability of success, the Plaintiff could not leap-frog to the irreparable injury and balance of convenience stages.

p. 3

Legal principles established

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  • Res judicata applies to interlocutory applications within the same suit; there must be an end to applications of a similar nature
  • The Giella conditions for an interlocutory injunction are sequential hurdles; if a prima facie case is not established, the other limbs need not be considered
  • The doctrine of lis pendens is unavailable where there are no injunctive orders barring the sale of the suit land

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 30th April, 2020 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A, 7
  • Civil Procedure RulesOrder 40 Rules 1(a), 2, 4 & 8

Cases cited (14)

  • Giella Vs Cassman Brown & Co. Ltd
    (1973) E.A 358
  • Robinson V Pickering
    (1881) 16 Ch. D. 660
  • Mawji Vs US International University & Another
    (1976) KLR 185
  • Grace Chemutai Koech Vs Francis Kiplangay Chebiror & 2 Others
    (2018) eKLR
  • Margaret Njoki Migwi Vs Barclays Bank of Kenya Ltd
    (2016) eKLR
  • Mrao Vs First American Bank of Kenya & 2 Others
    (2003) eKLR
  • Palmy Company Limited Vs Consolidated Bank of Kenya Limited
    (2014) eKLR
  • Showind Industries Vs Guardian Bank Limited & Another
    (2002) 1EA 284
  • Joseph M Mbuva V Pioneer Building Society Limited (In Receivership) & Peter Karanja Ngure
    (2016) eKLR
  • Stephen Wanganga Njoroge Vs Stanley Ngugi Njoroge & Another
    (2017) eKLR
  • Uhuru Highway Development Ltd V Central Bank & Others
    CA No. 36 of 1996
  • Uhuru Highway Development Limited v Central Bank of Kenya & 2 others
    [1996] eKLR
  • Nguruman Ltd v Jan Bonde Nelson & 2 others
    Civil Appeal No.21 of 2014 (UR)
  • Kenya Commercial Finance Co. Ltd v Afraha Education Society
    (2001) Vol.I EA 86
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rules 1(a), 2, 4 & 8 of the Civil Procedure Rules

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, "Sokono Ene Yonko v Moses Shonko & 3 others [2020] KEELC 1650 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 30th April, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1650/eng@2020-07-09

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