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ELCStruck Out

Joyce Nancy Kabiru v Faulu Micro-Finance Bank Limited & 2 others [2018] KEELC 2536 (KLR)

Environment and Land Court
26 June 2018
1,560 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a second land injunction bid, ruling you cannot re-argue the same application—even with new prayers—after losing the first one.

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 Kerugoya on the plaintiff's Notice of Motion dated 28th September 2017, brought under Order 40 Rules 1 and 2 of the Civil Procedure Rules, Section 68 of the Land Registration Act and Sections 1A, 1B and 3A of the Civil Procedure Act. The plaintiff, Joyce Nancy Kabiru, sought a temporary injunction restraining the 3rd defendant from evicting her from parcel MWERUA/MUKURE/1673, maintenance of the status quo, an inhibition on the title, and compliance orders directed at the Land Registrar Kirinyaga and the OCS Baricho Police Station. The suit property had been transferred to the 3rd defendant by the 1st defendant following a public auction conducted by the 2nd defendant, which auction the plaintiff challenges in the main suit. The 3rd defendant opposed, contending the application was res judicata because a similar injunction application dated 2nd November 2016 had been dismissed with costs on 16th June 2017, and that the plaintiff's remedy lay in damages. The court agreed, applying Section 7 of the Civil Procedure Act, Explanation 4 thereof, and the Henderson v Henderson principle. Following the Court of Appeal's decision in Uhuru Highway Development Ltd v Central Bank of Kenya, it held that the wider principles of res judicata apply to interlocutory applications within the same suit, and that the new prayers for inhibition and status quo, which could have been raised earlier, did not escape the bar. The Notice of Motion dated 28th September 2017 was struck out with costs to the 3rd defendant. The main suit was not determined.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiff's Notice of Motion dated 28th September 2017 is res judicata in light of the dismissal of a similar application on 16th June 2017
  2. 2.Whether the introduction of new prayers (inhibition and status quo) defeats the plea of res judicata
  3. 3.Whether an interlocutory ruling can found a plea of res judicata as between applications within the same suit

Key legal issues

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01

Whether res judicata under Section 7 of the Civil Procedure Act applies to interlocutory applications within the same suit

Holding

Yes. Following Uhuru Highway Development Ltd v Central Bank of Kenya, the wider principles of res judicata apply to applications within the suit, so a dismissed application cannot be renewed by a similar subsequent application.

Reasoning

The court relied on the Court of Appeal decision in Uhuru Highway Development Ltd v Central Bank of Kenya, which held that there must be an end to interlocutory applications of a similar nature, otherwise courts would be inundated by new applications after the original one was dismissed. That decision of a superior court is binding. The majority decision in Mburu Kinyua v Gachini Tuti was also noted.

p. 2
02

Whether the new prayers for inhibition and status quo escape the res judicata bar

Holding

No. Under Explanation 4 of Section 7, matters which might and ought to have been raised earlier are deemed to have been directly and substantially in issue.

Reasoning

Although the prayers for inhibition and status quo were not in the earlier application dismissed on 16th June 2017, Explanation 4 of Section 7 deems matters that might and ought to have been made a ground of attack or defence to have been in issue. The court also invoked the Henderson v Henderson principle requiring parties to bring forward their whole case.

p. 3

Legal principles established

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  • The wider principles of res judicata apply to interlocutory applications within the same suit; there must be an end to interlocutory applications
  • New prayers not raised in an earlier application do not defeat res judicata where they ought to have been raised (Explanation 4, Section 7 Civil Procedure Act)
  • Parties must bring forward their whole case at the first opportunity and will not be permitted to reopen the same subject of litigation on matters omitted through negligence, inadvertence or accident

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 28th September 2017 is struck out with costs to the 3rd defendant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority
Jurisdiction invoked
Order 40 Rules 1 and 2 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Section 68 of the Land Registration Act

Relief refused

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Temporary injunction restraining the 3rd defendant from evicting/removing the plaintiff from title number MWERUA/MUKURE/1673

Application struck out as res judicata

p. 3

Order for maintenance of status quo in respect of title number MWERUA/MUKURE/1673

New prayer that ought to have been raised in the earlier application; res judicata applies

p. 3

Inhibition in respect of title number MWERUA/MUKURE/1673

New prayer that ought to have been raised in the earlier application; res judicata applies

p. 2

Costs

Costs of the application awarded to the 3rd defendant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

there must be an end to applications of similar nature, that is to say further, wider principles of res-judicata apply to applications within the suit.
p. 2Res judicata and interlocutory applications
There must be an end to interlocutory applications as much as there ought to be an end to litigation
p. 2Finality in litigation
The up-shot of the above is that the plaintiff’s Notice of Motion dated 28 th September 2017 is struck out with costs to the 3rd defendant.
p. 3Final orders

Issues in the judgment

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minor

Signature anomaly: ruling signed and dated at Bungoma by B.N. Olao on 7th May 2018 but read and signed by S.N. Mukunya on 26th June 2018; the names of the parties and defendants and the case number are not stated in the ruling

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, "Joyce Nancy Kabiru v Faulu Micro-Finance Bank Limited & 2 others [2018] KEELC 2536 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2536/eng@2018-06-26

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