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ELCDismissedCMELC NO. E011 of 2023 (Appeal)· [2024] KEELC 4308 (KLR)

Karanja v Progressive Credit Limited & another (Environment and Land Appeal E039 of 2023) [2024] KEELC 4308 (KLR)

Environment and Land Court
27 May 2024
1,964 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that a borrower who loses an injunction cannot simply file a new case for the same relief—appeal instead, and defaulted loans rarely win injunctions.

What this practically means

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Executive summary

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This was an interlocutory first appeal to the Environment and Land Court at Nairobi against a ruling of Senior Principal Magistrate P.K Rotich in CMELC No. E011 of 2023 dismissing the appellant's application for a temporary injunction restraining the sale by public auction of land parcel Karai/renguti/942, charged to secure a loan of Kshs. 4,932,613 that had fallen into arrears. The trial Magistrate had declined injunctive relief on the basis that a similar application had been dismissed in Milimani CMCC No. 2468 of 2021 before Hon. C.K Cheptoo, after which the appellant withdrew that suit and filed afresh. On appeal, Mogeni J reiterated the first-appeal standard of retrial and upheld the impugned ruling. The court held that the fresh application for identical interim relief in the second suit was an abuse of process and violated Section 6 of the Civil Procedure Act, the appellant's remedy having been an appeal against the earlier dismissal. On the merits, the offer letter at Clause 6 listed the suit property as security, defeating the claim that only chattels were charged, though the statutory compliance issues under Section 90 of the Land Act were left for the full trial. Applying Giella v Cassman Brown, the court found the appellant had admitted failing to service the loan due to COVID-19 effects, and that an injunction would inequitably allow a defaulting borrower to accumulate interest at the lender's expense. The appeal was dismissed with costs to the respondents, the appellant being left at liberty to redeem the property before auction.

Key legal issues

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01

Sub judice / abuse of process by filing a fresh suit for the same interim relief

Holding

The plea for interim injunctive relief in the second suit was an abuse of court process and violated Section 6 of the Civil Procedure Act since the first court was seized of the same dispute and had dismissed the application

Reasoning

The appellant had obtained injunctive relief in CMCC E2468 of 2021; upon dismissal she withdrew that suit and filed a fresh suit seeking the same interim relief. The court held the proper course was an appeal, not a parallel suit, and that the second application contravened Section 6 of the Civil Procedure Act.

p. 3
02

Principles for grant of interlocutory injunction

Holding

The appellant failed to satisfy the Giella v Cassman Brown criteria; admitting non-payment of a loan in arrears, she could not show the balance of convenience favoured an injunction

Reasoning

The court held that in a plea for interim injunctive relief the court must pronounce itself on the Giella criteria. The appellant admitted failing to service the loan due to COVID-19; granting an injunction would let a debtor accumulate interest at the lender's expense, which was inequitable.

p. 4
03

Duty of first appellate court

Holding

A first appeal is disposed of by way of retrial; the court re-examines and reappraises the evidence and law and reaches its own conclusion

Reasoning

The court invoked the settled standard that on a first appeal it is obliged to re-examine and reappraise all facts and law on record, reach its own conclusion, and make allowance for not having seen or heard the witnesses, citing Selle v Associated Motor Boat Co.

p. 2
04

Whether the suit property was charged as security for the loan

Holding

Clause 6 of the offer letter lists the suit property Karai/renguti/942 as security, including household and business chattels, defeating the contention that the land was not offered as security

Reasoning

The appellant contended that only chattels, not the land, were security. The court noted the offer letter at Clause 6 lists the suit property as security and held the contention untenable, leaving the substantive question for the full trial.

p. 3

Legal principles established

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  • A party aggrieved by the dismissal of an interlocutory injunction application should appeal rather than file a fresh suit for the same interim relief, which violates Section 6 of the Civil Procedure Act
  • Granting an injunction to a borrower who admits inability to service a loan would inequitably prevent the lender from realising its security

Court orders

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  1. 1.The Appeal is dismissed with costs to the Respondent.

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Land ActSection 90 (1)(2)

Cases cited (4)

  • Selle & another Vs. Associated Motor Boat Co. Ltd & others
    (1968) E.A 123
  • Gitobu Imanyara & 2 others v Attorney General
    [2016] eKLR
  • Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates
    [2013] eKLR
  • Giella v Cassman Brown
    (1973) EA 358
On appeal from
Senior Principal Magistrate's Court
CMELC NO. E011 of 2023
Jurisdiction invoked
First appeal from the subordinate court (Environment and Land Court appellate jurisdiction)

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, "Karanja v Progressive Credit Limited & another (Environment and Land Appeal E039 of 2023) [2024] KEELC 4308 (KLR)", Case Analysis (2024). CMELC NO. E011 of 2023 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4308/eng@2024-05-27

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