Bady v Kanyi & another (Environment and Planning Civil Case E006 of 2023) [2025] KEELC 4470 (KLR)
The bottom line
#The Environment and Land Court in Mombasa refused a bank's second attempt to strike out a property buyer's suit, ruling the issues had already been decided.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The application was res judicata as regards the jurisdiction question, having been conclusively determined in the ruling of 12.11.2024.
The new application was based on essentially the same grounds as the earlier application dismissed on 12.11.2024. Jurisdiction having been determined with reasons, the 2nd defendant's only lawful option if dissatisfied was to appeal, not to re-litigate the same issue before the same court hoping for a different result.
Review of a co-ordinate court's ruling
The court cannot review or overturn an earlier ruling of a court of co-ordinate jurisdiction on the ground that it is erroneous in law.
Even if the applicant persuaded the court that the earlier Judge was wrong, the court has no lawful power to annul the earlier decision. That mandate belongs to a higher appellate court. The application on this ground therefore had to fail.
Locus standi of a purchaser suing a chargee
The plaintiff, as purchaser claiming a proprietary interest in bungalow No. 7 prior to the charge, has locus standi; Bank of Africa Kenya Ltd v TSS Investments is distinguishable.
The plaintiff claims a legal interest acquired before the charge was created and does not claim as tenant or licensee. Whether he ultimately succeeds is a separate question from locus standi. The 2nd defendant, holding a legal charge over the mother title, is a necessary party, so striking out its name would be premature.
Legal principles established
#- A court has no power to review or overturn a decision of a court of co-ordinate jurisdiction on the basis that it was erroneous in law; the remedy is appeal.
- A purchaser of property who claims a legal/proprietary interest predating a charge has locus standi to sue the chargee, and is distinguishable from a tenant or licensee.
Court orders
#- 1.The notice of motion dated 13.01.2025 is dismissed with costs to the plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; application brought under Sections 1B and 80 of the Civil Procedure Act (Cap 21) and Article 165(3)(a) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bady v Kanyi & another (Environment and Planning Civil Case E006 of 2023) [2025] KEELC 4470 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4470/eng@2025-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.