Susan Kirigo Kinyua v I & M Bank Ltd & another [2018] KEELC 98 (KLR)
The bottom line
#A Kenyan court dismissed a wife's bid to stop a bank auction because her claims had already been decided in an earlier case involving her husband's company.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application herein is res judicata the application filed in Nyeri ELC 192 of 2017
- 2.Subject to the outcome of (i) above, whether the applicant has made up a case for being granted the orders sought
- 3.What orders should the court make
Key legal issues
#Whether the application is res judicata the earlier application in Nyeri ELC No. 192 of 2017
It is res judicata; the issue of service of statutory notices on the applicant and tenants was raised and considered in the former proceedings, and the applicant, represented by the same advocate, could not claim ignorance of them
The court read the ruling in the former application, particularly paragraph 35, and found that whether the applicant and tenants were served with notices under the Land Act was raised there, even if no conclusive finding was made. The applicant is the spouse of the earlier applicant's principal and used the same advocate, so she could not have been unaware. Relying on Omondi v National Bank of Kenya Ltd, adding parties or causes of action does not escape res judicata.
Legal principles established
#- Parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit
Court orders
#- 1.The notice of motion dated 13th August 2018 is dismissed
- 2.Costs of the application to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court over applications for temporary injunction restraining sale of land (suit properties Thegenge/Karia/1387 and Nyeri/Municipality Block III/70)
Relief refused
#Temporary injunction restraining sale by public auction of the suit properties
The application was res judicata the application in Nyeri ELC No. 192 of 2017 and therefore had no merit
Suspension and/or postponement of the sale of the suit properties for 3 months
Alternative relief fell with the dismissal of the application on the ground of res judicata
Costs
The application was dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.
My take is that she cannot as if she bothered to know she would have known.
The upshot of the foregoing is that the application has no merit and is hereby dismissed with costs to the respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Susan Kirigo Kinyua v I & M Bank Ltd & another [2018] KEELC 98 (KLR)", Case Analysis (2018). Nyeri ELC Case (notice of motion dated 13th August 2018 in the plaint dated 13th August 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/98/eng@2018-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.