Mary Nyamvula Lenga v Savings and Loan (K) Limited (Now Known as KCB Bank (K) Ltd) [2020] KEELC 1657 (KLR)
The bottom line
#The Environment and Land Court in Mombasa struck out a homeowner's 2019 challenge to a 1998 bank charge as too late and a repeat of a dismissed case.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was time barred
The suit was time barred; limitation ran from 22nd May 2006 when the plaintiff discovered the alleged fraud, and the suit filed on 14th May 2019 was far outside the six-year period.
The plaintiff's own pleadings admitted knowledge of the alleged fraud on or about 22nd May 2006. Her claim was a dispute as to the existence of the charge, which is a contract, so Section 4(1)(a) of the Limitation of Actions Act applied. Six years lapsed on 21st May 2012; the suit filed on 14th May 2019 was out of time and had to fail.
Whether the suit was res judicata
The suit was res judicata; the facts, reliefs and parties (save for a 2nd defendant) were the same as in Mombasa HCCC No. 161 of 2006 which was dismissed for want of prosecution.
Applying the five-element test from Bernard Mugo Ndegwa and the Court of Appeal's holding in Co-operative Bank v Moka that a matter dismissed for want of prosecution cannot be resuscitated by a fresh suit, the court found the earlier ruling captured the very same facts and reliefs, satisfying Section 7 of the Civil Procedure Act.
Whether the change of the defendant's name created a fresh cause of action
No; the change of name from Savings and Loan (K) Ltd to KCB Bank (K) Ltd did not affect the defendant's rights or obligations or create a fresh cause of action.
Section 20(4) of the repealed Companies Act and Section 66 of the Companies Act No. 17 of 2015 provide that a change of name does not affect rights or obligations or render defective any legal proceedings; proceedings against the former name may be continued against the new name.
Legal principles established
#- Any suit founded on contract, including a challenge to a charge instrument on grounds of fraud discovered more than six years before filing, must be brought within six years under Section 4(1)(a) of the Limitation of Actions Act
- A suit filed after a previous suit between the same parties on the same facts and reliefs was dismissed for want of prosecution is res judicata
- A change of a company's name does not affect its rights or obligations or render legal proceedings by or against it defective
Court orders
#- 1.The defendant's Notice of Motion dated 4th July 2019 is allowed
- 2.The plaintiff's suit is struck out with costs to the defendant
- Jurisdiction invoked
- Original civil jurisdiction; application under Sections 4(1)(a) & 7 of the Limitation of Actions Act (Cap 22), Section 7 of the Civil Procedure Act (Cap 21) and Order 2 Rule 15 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Nyamvula Lenga v Savings and Loan (K) Limited (Now Known as KCB Bank (K) Ltd) [2020] KEELC 1657 (KLR)", Case Analysis (2020). Mombasa ELC (as stated in judgment, plaintiff's suit against the defendant; specific number not stated in the text provided). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1657/eng@2020-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.