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ELCStruck OutELC Nakuru (formerly HCCC No. 172 of 2009)· [2021] KEELC 3951 (KLR)

Nathan Mutua Kolile v Equity Bank (K) Limited & another [2021] KEELC 3951 (KLR)

Environment and Land Court
18 March 2021
1,816 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a landowner's attempt to stop a bank auction because he had already lost similar applications, confirming you cannot repackage old arguments as new.

What this practically means

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Executive summary

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The plaintiff, registered owner of LR No. Nakuru Municipality Block 21/66, moved the court by Notice of Motion dated 9th October 2020 seeking a preservation order staying a scheduled sale of the property on 25th November 2020 by Antique Auctions Agencies under instructions from the 1st defendant (Equity Bank) to recover a debt of KShs 20,530,944.44. He argued that his guarantor's liability had been discharged by repayments by the principal debtor and that the notices offended the in duplum rule under section 44A of the Banking Act. Both defendants opposed, contending the application was res judicata and an abuse of process, citing earlier dismissed applications seeking the same relief. The court treated res judicata as the threshold jurisdictional question. Applying section 7 of the Civil Procedure Act and the Court of Appeal's restatement of the doctrine in IEBC v Maina Kiai, the court noted that under section 2 'suit' includes applications. The record showed two prior applications to stop the same sale: a Chamber Summons of 7th May 2009 dismissed on 10th December 2010 for want of a prima facie case, and a Notice of Motion of 20th February 2018 found res judicata and abusive on 16th March 2018. The plaintiff's new in duplum argument could not evade the bar since, by Explanation 4 to section 7, it was a matter that ought to have been raised in the first application - the rule having been in force since 1st May 2007. The court struck out the application with costs to the defendants.

Key legal issues

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01

Whether the application dated 9th October 2020 is res judicata

Holding

Yes. The plaintiff had previously filed two applications seeking to stop sale of the same suit property; the first was dismissed on merits (10th December 2010) and the second (16th March 2018) was found res judicata and an abuse of process. The new in duplum argument was a matter that ought to have been raised earlier under Explanation 4 to section 7.

Reasoning

The court applied section 7 of the Civil Procedure Act and the conjunctive elements in IEBC v Maina Kiai. Interlocutory applications are 'suits' under section 2. The plaintiff had every opportunity to raise the in duplum rule, which was in force since 1st May 2007, in his first application of 7th May 2009. Repackaging the same relief with a new legal theory could not evade res judicata.

p. 2
02

Whether the application is merited on the in duplum rule

Holding

Not reached; the res judicata finding disposed of the application.

Reasoning

The judge expressly stated that if res judicata applied, the application would come to an end. Having found res judicata established, the court struck out the application without determining merits or the in duplum arguments raised by the plaintiff.

p. 2

Legal principles established

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  • An application for injunction/preservation can itself be res judicata; 'suit' under the Civil Procedure Act includes all civil proceedings, including applications
  • A ground that might and ought to have been raised in a former suit (here the in duplum rule) is deemed to have been directly and substantially in issue - Explanation 4 to section 7 Civil Procedure Act

Court orders

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  1. 1.Notice of Motion dated 9th October 2020 struck out
  2. 2.Costs of the application to the defendants

Authorities

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Legislation

  • Civil Procedure ActSection 7 (including Explanation 4)
  • Civil Procedure ActSection 2 (definition of 'suit')
  • Banking ActSection 44A

Cases cited (6)

  • Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others
    [2017] eKLR
  • Housing Finance Company of Kenya Limited v Scholarstica Nyaguthii Muturi & another
    [2020] eKLR
  • James Muniu Mucheru v National Bank of Kenya Limited
    [2019] eKLR
  • Fr. George Mathenge and Fr. Nicholas Onyanch (both suing as officials of Franciscan Family Association of Kenya) vs. Micro Enterprises Support Programme Trust Registered Trustees & Anor
    [2016] eKLR
  • Mwambeja Ranching Company Limited & Anor vs. Kenya National Capital Corporation
    [2019] eKLR
  • Dorcas Mumo Mutua v Equity Bank Ltd & 3 Others (Nakuru HCCC No. 24 of 2017)
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit property; Civil Procedure Act section 7 (res judicata)

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, "Nathan Mutua Kolile v Equity Bank (K) Limited & another [2021] KEELC 3951 (KLR)", Case Analysis (2021). ELC Nakuru (formerly HCCC No. 172 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3951/eng@2021-03-18

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