Son Hardware Limited v Development Bank of Kenya Limited & another [2022] KEELC 2029 (KLR)
The bottom line
#The Environment and Land Court at Kajiado blocked a property owner's attempt to stop a bank auction, ruling the same fight had already been decided.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The application is res judicata because an identical application was heard and dismissed on merit by the High Court at Kajiado (HCCC 44 of 2018) and on appeal (Civil Application No. 3 of 2019, UR 3/19)
The Plaintiff had previously gone to the High Court to challenge the intended sale of the suit property; that application was dismissed, and an appeal to the Court of Appeal against the dismissal was also dismissed. The court therefore held that re-litigating the same issue before a court of equal status was barred.
Compliance with statutory pre-sale requirements under the Land Act
Contrary to the applicant's claim that no statutory notice was served, the respondents demonstrated issuance of the requisite notices (dated 26/7/2017 and 17/11/2017), a valuation report and notification of sale
The first Defendant's legal officer swore a replying affidavit annexing statutory notices, a valuation report dated 17th June, 2021, and a certificate of sale dated 6/7/2021. The court found these demonstrated compliance, contrary to the applicant's assertion that no notice, valuation or notification preceded the auction.
Test for interlocutory injunction
The applicant failed to establish a prima facie case with a probability of success, and the balance of convenience did not favour it
Even after being given ample time to avail evidence of payment of the loan, no such evidence was forthcoming. In the absence of a prima facie case and favourable balance of convenience, the injunction sought under Order 40 Rules 1 and 2 could not issue.
Legal principles established
#- A matter already heard and dismissed on merit by a court of equal status is res judicata
- A chargee who issues the requisite statutory notice before exercising its statutory power of sale demonstrates compliance, defeating a claim of irregular sale
Court orders
#- 1.Dismissal of the Notice of Motion dated 16th July, 2021
- 2.Costs of the application to the Respondents
- Jurisdiction invoked
- Order 40 Rules 1 and 2 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Son Hardware Limited v Development Bank of Kenya Limited & another [2022] KEELC 2029 (KLR)", Case Analysis (2022). Notice of Motion dated 16th July, 2021 (ELC, Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2029/eng@2022-01-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.