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ELCDismissedNot stated in judgment· [2025] KEELC 4470 (KLR)

Bady v Kanyi & another (Environment and Planning Civil Case E006 of 2023) [2025] KEELC 4470 (KLR)

Environment and Land Court
12 June 2025
1,330 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Mombasa (Y. M. Angima J) on a notice of motion dated 13.01.2025 by the 2nd defendant seeking review and setting aside of a ruling dated 12.11.2024 (Matheka J) which had dismissed the 2nd defendant's earlier application to strike out the plaintiff's suit. The application rested on two grounds: that the court lacked jurisdiction under Article 165(3)(a) of the Constitution, and that the plaintiff lacked locus standi to challenge the 2nd defendant's statutory power of sale, the latter resting on Bank of Africa Kenya Ltd v TSS Investments Ltd. The plaintiff opposed through grounds of opposition, arguing res judicata, that he purchased bungalow No. 7 from the 1st defendant and holds a proprietary interest (the property having been fraudulently charged to the 2nd defendant to secure Kshs.29 million), and that the application was an abuse of process unsupported by an affidavit. The court framed two issues: whether the application was res judicata, and whether a case for review was made out. It held the jurisdiction question was conclusively determined on 12.11.2024, and a party dissatisfied must appeal rather than re-litigate; further, a court of co-ordinate jurisdiction cannot review its own or another co-ordinate court's decision for error of law. On locus standi, the court found the plaintiff's claim proprietary in nature, distinguished Bank of Africa v TSS Investments, and held the 2nd defendant a necessary party as chargee over the mother title. The notice of motion was dismissed with costs to the plaintiff.

Key legal issues

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01

Res judicata

Holding

The application was res judicata as regards the jurisdiction question, having been conclusively determined in the ruling of 12.11.2024.

Reasoning

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.

p. 3
02

Review of a co-ordinate court's ruling

Holding

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.

Reasoning

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.

p. 3
03

Locus standi of a purchaser suing a chargee

Holding

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.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The notice of motion dated 13.01.2025 is dismissed with costs to the plaintiff

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 165(3)(a)
  • Civil Procedure Act (Cap 21)Sections 1B and 80

Cases cited (3)

  • Bank of Africa Kenya Ltd vs TSS Investments Ltd
    (2024) KECA 410 (KLR)
  • Bia Distribution vs Kenya Breweries
    (2023) KESC 12 (eKLR)
  • Lydia Nyambura Mbugua vs Diamond Trust Bank
    (2018) eKLR
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

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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, "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.