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ELCStruck OutELC No 106 of 2020 (Mombasa)· [2024] KEELC 464 (KLR)

Shah & another v Bank of Baroda & 3 others (Environment & Land Case 106 of 2020) [2024] KEELC 464 (KLR)

Environment and Land Court
7 February 2024
4,515 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a land suit in Mombasa because the same dispute had already been decided, awarding costs to the defendants.

What this practically means

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Executive summary

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The plaintiffs, registered owners (or claiming through registered owners) of LR No MN/1/1185 CR 10161, sued the 1st defendant chargee bank and the 2nd defendant auctioneers after the suit property was sold by public auction on 27th August 2020 to the 3rd and 4th respondents for Kshs 65,400,000. Three applications were heard together: the plaintiffs' notice of motion dated 13th February 2023 sought a temporary injunction against eviction, an order directing the DCI to produce its investigation report, and leave to amend the plaint; their notice of motion dated 13th April 2023 sought committal of the 3rd and 4th respondents to civil jail for contempt of interim orders of 14th February 2023 and 1st March 2023 reinstating the plaintiffs to possession; and the 3rd and 4th respondents' notice of motion dated 26th April 2023 sought stay and setting aside of those interim orders on grounds of res judicata. The court framed five issues and found that the parties and the cause of action - the legality of the auction and the purchasers' title - were directly and substantially in issue in Mombasa ELC No 64 of 2021, where judgment delivered on 21st February 2023 found the respondents to be innocent purchasers for value protected by section 99 of the Land Act and ordered the plaintiffs to give vacant possession. Applying section 7 of the Civil Procedure Act and the Gladys Nduku Nthuki decision, the court held the suit res judicata and an abuse of process, struck out the suit and both plaintiffs' applications with costs, granted the respondents' application and set aside the interim orders, awarding costs to the defendants under section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the suit and the plaintiffs' applications are res judicata to Mombasa ELC No 64 of 2021

Holding

Yes - the parties are the same or litigating under the same title, the cause of action (the 27th August 2020 auction and sale) is the same, and the issues were directly and substantially heard and determined in the former suit

Reasoning

The court examined the decision in ELC No 64 of 2021, where the 3rd and 4th respondents (plaintiffs there) had sought declarations of bona fide purchase, trespass and eviction against the plaintiffs herein. Judgment delivered on 21st February 2023 found the respondents innocent purchasers for value protected under section 99 of the Land Act, with no fraud or irregularity, and ordered vacant possession and permanent injunction. The court held that adding parties or 'conjouring' issues cannot defeat res judicata; all issues raised were substantially considered and determined in the former suit.

p. 7
02

Whether the plaintiffs proved contempt of the orders of 17th February 2023 and 1st March 2023

Holding

No - the contempt application collapses with the suit, as it is founded on orders that would probably not have been granted had the res judicata status been apparent

Reasoning

The court reasoned that the injunction and reinstatement orders of 14th February 2023, 1st March 2023 and 13th April 2023 were granted in a suit that was itself res judicata. Since the suit had no foundation, the contempt application built upon those orders was 'based on quicksand'. The court instead set aside those orders on the 3rd and 4th respondents' application dated 26th April 2023.

p. 8
03

Whether temporary injunction should issue and leave to amend the plaint be granted

Holding

No - both prayers fall with the suit struck out as res judicata

Reasoning

Once the suit was found res judicata and struck out, the injunction application dated 13th February 2023 (which also sought leave to amend the plaint and a DCI investigation report) and the contempt application dated 13th April 2023 were struck out with costs. The injunction had been granted on 14th February 2023 only pending inter-parties hearing; upon full hearing, the res judicata finding removed its foundation entirely.

p. 8
04

Whether the orders of 14th February 2023, 1st March 2023 and 13th April 2023 should be set aside

Holding

Yes - the 3rd and 4th respondents' application dated 26th April 2023 seeking stay and setting aside of those orders is granted with costs

Reasoning

The respondents argued the interim orders forced them to litigate over a suit property over which they held title following the judgment in ELC No 64 of 2021, and that the court could not sit on appeal over a decision of a judge of concurrent jurisdiction. The court agreed that had res judicata been apparent, those interim orders would probably not have been granted, and set them aside as a matter of the respondents' application being merited.

p. 8

Legal principles established

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  • The mere addition or subtraction of parties in a subsequent suit does not inhibit res judicata from operating where the parties litigate under the same title
  • A suit found to be res judicata is an abuse of the court process and any interlocutory relief founded on it falls without foundation

Court orders

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  1. 1.That the suit herein, commenced through the plaint dated 17th August 2020 is res judicata to ELC No 64 of 2021 as it substantially deals with the same issues already determined and between the same parties
  2. 2.That the suit herein, having been found to be res judicata, is hereby struck out with costs
  3. 3.That the 3rd and 4th respondents application dated the 26th April 2023 has merit and is granted with costs and the orders given on 14th February 2023, 1st March 2023 and 13th April 2023 are hereby set aside
  4. 4.That the plaintiffs' notices of motion dated the 13th February 2023 and 13th April 2023 that were predicated on a suit that has been found to be res judicata, are without merit and are therefore struck out with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 7, 27, 63(e), 100
  • Civil Procedure RulesOrder 1 Rule 10, Order 8, Order 40 (including Order 40(7)), Order 51
  • Land ActSection 97, Section 99
  • Judicature ActSection 5(1)
  • Constitution of KenyaArticles 25(c), 40, 48, 50(1), 159

Cases cited (1)

  • Gladys Nduku Nthuki v Letshego Kenya Limited; Mueni Charles Maingi (Intended Plaintiff) [2022] eKLR
    [2022] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under the Civil Procedure Act; suit filed 17th August 2020 over land parcel LR No MN/1/1185 CR 10161

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, "Shah & another v Bank of Baroda & 3 others (Environment & Land Case 106 of 2020) [2024] KEELC 464 (KLR)", Case Analysis (2024). ELC No 106 of 2020 (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/464/eng@2024-02-07

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