Shah & another v Bank of Baroda & 3 others (Environment & Land Case 106 of 2020) [2024] KEELC 464 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the suit and the plaintiffs' applications are res judicata to Mombasa ELC No 64 of 2021
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
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.
Whether the plaintiffs proved contempt of the orders of 17th February 2023 and 1st March 2023
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
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.
Whether temporary injunction should issue and leave to amend the plaint be granted
No - both prayers fall with the suit struck out as res judicata
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.
Whether the orders of 14th February 2023, 1st March 2023 and 13th April 2023 should be set aside
Yes - the 3rd and 4th respondents' application dated 26th April 2023 seeking stay and setting aside of those orders is granted with costs
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.
Legal principles established
#- 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
#- 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.That the suit herein, having been found to be res judicata, is hereby struck out with costs
- 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.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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.