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ELCOtherELC 201 of 2020· [2021] KEELC 3002 (KLR)

Paul Jesse Mungatia v K-Rep Bank Limited (Rebranded) & 2 others [2021] KEELC 3002 (KLR)

Environment and Land Court
24 May 2021
2,706 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The defendants raised a preliminary objection under the Mukisa Biscuit principle seeking dismissal of the plaintiff's Notice of Motion and plaint on grounds of res judicata. The plaintiff, who had been the 4th plaintiff in Mombasa ELC 315 of 2017 (Golden Service Organization & 3 others v Sidian Bank Limited), had sued the same bank defendants and an auctioneer again over the same charged properties (Kilifi/Kijipwa/369 and Plot 152/III/MN), seeking declarations of breach of prudential banking guidelines, a mandatory injunction to reinstate him to the properties, and damages. The former suit had gone to full trial and was decided by Omollo J on 9th June 2020, with the plaintiffs' case dismissed on most prayers and only Kshs.31,140 awarded on prayer (c). Applying section 7 of the Civil Procedure Act and the Henderson v Henderson principle, C.K. Yano J found the parties, claim and cause identical, that the former suit was heard and finally decided on merit, and that the plaintiff had merely camouflaged previously litigated issues. The court noted that the plaintiff's grievance against the former judgment was already the subject of a pending appeal (CA No 179 of 2020), which was the proper avenue. The preliminary objection was allowed in its entirety: both the plaint and the Notice of Motion were struck out with costs to the 1st and 2nd defendants. Judgment delivered at Mombasa on 24th May 2021.

Key legal issues

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01

Whether the preliminary objection met the Mukisa Biscuit threshold

Holding

It did, as res judicata arises by clear implication out of the pleadings and is a pure point of law

Reasoning

The court applied the Mukisa Biscuit test, holding that res judicata can be determined by examining the pleadings alone, without ascertaining facts outside them, so it qualifies as a pure point of law suitable for determination as a preliminary objection.

p. 2
02

Whether the present suit is res judicata to ELC 315 of 2017

Holding

Yes - the parties, claim and cause are the same, and the former suit was heard and finally decided on merit

Reasoning

The court compared the pleadings: the plaintiff was the 4th plaintiff in the former suit and the defendants remain the same save for the addition of the auctioneer; both suits concern the same suit properties and charges; the former suit proceeded to full trial and final judgment by Omollo J on 9th June 2020. The present suit merely camouflages issues already adjudicated.

p. 4
03

Whether the proper avenue for the plaintiff is the pending appeal

Holding

Yes - the plaintiff should pursue the pending appeal rather than institute a new trial

Reasoning

The plaintiffs in the former suit had already filed CA No 179 of 2020 in the Court of Appeal. The court held that res judicata does not restrict the appeal process, and the plaintiff's proper remedy is to challenge the judgment on appeal rather than commence fresh litigation on the same issues.

p. 4

Legal principles established

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  • A preliminary objection consists of a pure point of law pleaded or arising by clear implication from the pleadings, which may dispose of the suit
  • Res judicata bars re-litigation of matters directly and substantially in issue in a former suit between the same parties, heard and finally decided by a competent court
  • Parties cannot evade res judicata by adding other parties or causes of action in a subsequent suit

Court orders

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  1. 1.The plaint dated 27th October 2020 and filed on 30th October 2020 is struck out with costs to the 1st and 2nd defendants
  2. 2.The Notice of Motion dated 27th October 2020 and filed on 30th October 2020 is struck out with costs to the 1st and 2nd defendants

Authorities

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Legislation

  • Civil Procedure ActSection 7

Cases cited (7)

  • Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd
    (1969) EA 696
  • Gurbachau – v- Yowani Ekori
    (1958) EA 450
  • Henderson – v- Henderson
    (1) 67 ER 313
  • Attorney General & another ET vs
    (2012) eKLR
  • Omondi s NBK & Others
    (2001) EA 177
  • Njanju vs Wambugu and another
    Nairobi HCC No. 2340 of 1991 (unreported)
  • Golden Service Organization and 3 others V Sidian Bank Limited
    ELC 315 of 2017
Jurisdiction invoked
Article 162(2) Constitution (Environment and Land Court) - not expressly stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Paul Jesse Mungatia v K-Rep Bank Limited (Rebranded) & 2 others [2021] KEELC 3002 (KLR)", Case Analysis (2021). ELC 201 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3002/eng@2021-05-24

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