Sokono Ene Yonko v Moses Shonko & 3 others [2020] KEELC 1650 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the application is res judicata
It is; a prior application dated 1st October 2019 seeking the same injunctive relief was heard and dismissed on 17th December 2019
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.
Whether the doctrine of lis pendens barred the sale
It did not; the doctrine is unavailable where no injunctive orders barring the sale exist
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.
Whether the Plaintiff established a prima facie case with a probability of success
She did not; the first Giella condition failing, the other conditions were not considered
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.
Legal principles established
#- 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
#- 1.The Plaintiff's Notice of Motion dated 30th April, 2020 is dismissed with costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.