Dzombo & 2 others v KCB Bank Kenya Limited
The bottom line
#Kenya's Environment and Land Court struck out a land dispute against KCB Bank because the same issues had already been decided in an earlier case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the suit breached the doctrine of Res judicata hence offending the provisions of Section 7 of the Civil Procedure Act taking that it is the same as ELC No. 52 of 2013
- 2.Whether the Defendant is entitled to the orders sought
- 3.Who will bear the Costs of Notice of Motion application 16th November, 2022 and of the suit filed on 3rd June, 2022
Key legal issues
#Whether the Originating Summons was res judicata to Mombasa HCCC No. 52 of 2013
Yes - the subject matter (the charge over the suit property), the parties and the issues were the same; the earlier suit was concluded by a consent judgment recorded on 17th October 2013, and the plaintiffs were attempting to relitigate matters that ought to have been raised there
The court compared the pleadings and found the subject matter and parties identical. The consent judgment was a final determination of the loan/charge dispute. Citing E.T v Attorney General and Omondi v National Bank of Kenya, the court held that a litigant cannot evade res judicata by cosmetic relabelling of causes of action; issues that could have been raised in the former suit are barred.
Whether the Defendant was entitled to striking-out orders
Yes - the suit offended Order 2 Rule 15 and Order 4 Rule 1(1)(f) of the Civil Procedure Rules as res judicata and an abuse of process, and was struck out
The court invoked Order 2 Rule 15 (abuse of process as a ground for striking out pleadings) and Order 4 Rule 1(1)(f) requiring an averment of no previous proceedings over the same subject matter. The plaintiffs' own supporting affidavit admitted the earlier suit and consent. Striking out was warranted notwithstanding the general reluctance to dismiss suits summarily.
Costs of the application and the suit
Costs follow the event under Section 27(1) of the Civil Procedure Act; the successful Defendant was awarded costs of both the application and the suit
The court applied Section 27(1) of the Civil Procedure Act and Supreme Court decisions (Jasbir Rai Singh v Tarchalan Singh; Cecilia Karuru Ngayo v Barclays Bank) that costs follow the event. Having found the suit liable to be struck out, the Defendant succeeded and was entitled to costs.
Legal principles established
#- For res judicata to be upheld, the elements of Section 7 of the Civil Procedure Act must be satisfied conjunctively
- Parties cannot evade res judicata by adding new parties or causes of action in a subsequent suit
- A suit that relitigates matters concluded in a consent judgment is an abuse of process and liable to be struck out
Court orders
#- 1.The Notice of Motion application dated 16th November, 2022 is allowed in its entirety
- 2.The suit commenced by Originating Summons dated 3rd June, 2022 is struck out as res judicata to Mombasa HCCC No. 52 of 2013 and the case is closed altogether
- 3.Costs of the Originating Summons and of the Notice of Motion dated 16th November, 2022 are awarded to the Defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
Relief refused
#Consolidation of ELC No. 015 of 2021 (Kioko Sunza Kilonzo v Stephen Oddiagabe) with this suit
Sought in the Defendant's application but not granted in the final orders; the court allowed only striking out and costs
Costs
Costs of the suit by way of Originating Summons dated 3rd June, 2022 and of the Notice of Motion dated 16th November, 2022 are awarded to the Defendant.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That the suit as filed by the Plaintiffs commenced by way of Originating Summons dated 03rd June, 2022 and filed in Court on the same date together with the ensuing proceedings is hereby struck out on account of being res judicata to Mombasa High Court Civil Case Number 52 of 2013
That costs of the suit by way of Originating Summons dated 3rd June, 2022 and of the Notice of Motion dated 16th November, 2022 are hereby awarded to the Defendant.
That the Notice of Motion application dated 16th November, 2022 being meritorious be and is hereby allowed in its entirety.
Parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.
The foundation of res judicata thus rest in the public interest for swift, sure and certain justice.
Issues in the judgment
#Application date inconsistently stated as 16th November 2022 and 15th March 2023
Former suit inconsistently cited as HCCC No. 52 of 2013, ELC No. 52 of 2013 and HCCC No.52 of 2023
2nd Plaintiff misdescribed as 'the Defendant herein' in the replying affidavit narrative
Arithmetic error in the replying affidavit totals (Kshs.62,354,516.49 versus Kshs.65,354,516.49)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dzombo & 2 others v KCB Bank Kenya Limited", Case Analysis (2023). Environment & Land Case E061 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20474/eng@2023-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.