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ELCDismissedNot stated in judgment (application dated 13 December 2022 in Originating Summons filed 9 May 2017)· [2024] KEELC 6107 (KLR)

Ondabu v Bosire; Jamii Bora Bank Limited (Interested Party) (Environment & Land Case 108 of 2017) [2024] KEELC 6107 (KLR)

Environment and Land Court
26 September 2024
MSMunyao Sila
1,318 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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You cannot use an application in a concluded land case to attack a bank's charge; a fresh lawsuit is required.

What this practically means

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Executive summary

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The applicant obtained judgment on 5 October 2021 in an Originating Summons claiming adverse possession of Wanjare/Bogiakumu/8029, registered in the name of Susan Moraa Bosire (the respondent). When moving to be registered as proprietor, he discovered a charge registered over the title on 7 February 2018 in favour of Jamii Bora Bank Limited to secure an overdraft of Kshs. 3,500,000 taken by the respondent. By an application dated 13 December 2022, he sought to join the bank to the concluded suit and to have the charge declared null and void under the doctrine of lis pendens and discharged. The bank filed a preliminary objection and replying affidavit, contending that substantive orders could not be sought in a post-judgment application (contrary to Order 3 Rule 1), that no encumbrance or notice of the applicant's interest was registered, that the respondent had earlier sued the bank and lost an injunction application in Kisii CMCC No. E065 of 2022, that the applicant was indolent in failing to register a caution or the order, and that the bank was owed Kshs. 5,288,022.15, which if paid would secure discharge of the title. The respondent filed no reply, prompting the court to note possible collusion. Holding that the attack on the charge was a fresh cause of action unrelated to the determined adverse possession suit, which could only be pursued through a fresh substantive suit with proper pleadings, Munyao Sila J dismissed the application with costs to the interested party.

Key legal issues

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01

Whether a post-judgment application can be used to attack a charge registered over the suit property and seek its discharge

Holding

No - the claim against the charge is a new cause of action unrelated to the original adverse possession suit and must be pursued by a fresh substantive suit

Reasoning

The original suit, determined on 5 October 2021, concerned adverse possession of Wanjare/Bogiakumu/8029. The applicant now seeks obliteration of a charge registered during the pendency of the suit. The court found this claim has no relation to the determined cause of action; allowing it would amount to hearing a fresh case after determination and without requisite pleadings, and would deprive the chargee of the opportunity to defend and call evidence.

p. 2

Legal principles established

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  • A fresh cause of action cannot be launched through an application filed in a suit that has already been determined; a substantive suit must be originated through a plaint or other acceptable process.

Court orders

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  1. 1.The application dated 13 December 2022 is dismissed
  2. 2.Costs of the application awarded to the interested party

Authorities

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Legislation

  • Civil Procedure RulesOrder 3 Rule 1
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the pending suit (post-judgment application in the Originating Summons)

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, "Ondabu v Bosire; Jamii Bora Bank Limited (Interested Party) (Environment & Land Case 108 of 2017) [2024] KEELC 6107 (KLR)", Case Analysis (2024). Not stated in judgment (application dated 13 December 2022 in Originating Summons filed 9 May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6107/eng@2024-09-26

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