Shah (Suing on Behalf of the Estate of Janendra Raichand Shah) & another v Fidelity Commercial Bank [SBM Bank Limited] (Environment & Land Case E041 of 2023) [2024] KEELC 4447 (KLR)
The bottom line
#A Mombasa court struck out a family's bid to stop an SBM Bank property auction because they had already filed similar cases without disclosing them.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection raised pure points of law
The grounds did not raise pure points of law as they would require evidence to be ascertained, but the court proceeded to determine them as part of the defendant's reply since the same grounds were raised in the replying affidavit
Applying the Mukisa Biscuit definition, the court found the objection grounds required calling and considering evidence. However, because the identical grounds were raised in the replying affidavit sworn on 7th December 2023, the court treated them as part of the reply to the application rather than dismissing them outright as a defective preliminary objection.
Whether the suit is res judicata
The application was found res judicata, being a replica of applications decided in previous suits between the same parties over the same properties
The suit properties and parties in this suit were the same as in Mombasa HCCC No. 28 of 2017 (pending) and Mombasa HCCC No. E015 of 2022 (struck out on 3rd October 2023). The plaintiffs had not shown those courts lacked jurisdiction and could have sought amendment of pleadings there. Filing afresh without disclosure was an abuse of process.
Whether the suit is sub judice
The suit was held sub judice Mombasa HCCC No. 28 of 2017, which was filed earlier and remains pending
The matters in issue are directly and substantially in issue in the earlier pending suit between the same parties over the same properties, contrary to section 6 of the Civil Procedure Act. The plaintiffs' denial in paragraph 19 of the plaint and the verifying affidavit was found to be far from the truth.
Whether the plaintiffs established a prima facie case for injunction
Having failed on candour and being caught by res judicata and sub judice, the plaintiffs failed to establish a prima facie case with a probability of success
Given the determinations on res judicata, sub judice and the plaintiffs' lack of candour in the plaint and verifying affidavit, the interlocutory injunction sought could not stand. The court did not reach the merits of the compulsory acquisition or right of redemption arguments.
Legal principles established
#- A preliminary objection must raise a pure point of law and cannot be raised where facts have to be ascertained
- Filing a fresh suit over a matter already litigated or pending, without disclosing the previous suits, amounts to an abuse of the process of the court
- Costs follow the event under section 27 of the Civil Procedure Act unless otherwise ordered for good cause
Court orders
#- 1.The plaintiffs' notice of motion dated 9th November 2023 is declared res judicata
- 2.The suit is declared sub judice Mombasa HCCC No. 28 of 2017, Nesfood Industries Limited & Janendra Raichand Shah v Fidelity Commercial Bank Limited, which was filed earlier and is reportedly still pending
- 3.The application dated 9th November 2023 and the suit commenced through the plaint of even date are struck out
- 4.The plaintiffs to pay the defendant's costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2) of the Constitution (as an interlocutory application in a land suit); not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shah (Suing on Behalf of the Estate of Janendra Raichand Shah) & another v Fidelity Commercial Bank [SBM Bank Limited] (Environment & Land Case E041 of 2023) [2024] KEELC 4447 (KLR)", Case Analysis (2024). ELC Case of 2023 (Mombasa) – Notice of Motion dated 9th November 2023 and Preliminary Objection dated 8th December 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4447/eng@2024-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.