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ELCPartially AllowedEnvironment & Land Case E061 of 2022· [2023] KEELC 20474 (KLR)

Dzombo & 2 others v KCB Bank Kenya Limited

Environment and Land Court of Kenya
2 October 2023
12,798 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~51 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land dispute against KCB Bank because the same issues had already been decided in an earlier case.

What this practically means

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Executive summary

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KCB Bank Kenya Limited, the Defendant, moved the Environment and Land Court at Mombasa under Sections 1A, 1B, 3A, 5 and 7 of the Civil Procedure Act seeking striking out of the Plaintiffs' Originating Summons dated 3rd June 2022 as res judicata to Mombasa HCCC No. 52 of 2013, plus consolidation with ELC No. 015 of 2021 and costs. The Bank relied on a consent judgment recorded on 17th October 2013 in the earlier suit, under which the Plaintiffs agreed to liquidate Kshs. 35,818,166.48 with interest at 17%, and argued the Plaintiffs were relitigating concluded loan and charge issues without seeking review, setting aside or appeal. The 2nd Plaintiff opposed, contending the two suits were distinct (Plaint versus Originating Summons, different prayers), that the loan had been fully or over-paid (alleging over Kshs. 62 million paid, supported by a forensic audit), and that the Bank had refused to discharge the charge and release titles. Naikuni J framed three issues: res judicata, entitlement to the orders sought, and costs. Applying Section 7 of the Civil Procedure Act and Section 28 of the Environment and Land Court Act, and the conjunctive elements from IEBC v Maina Kiai, the court found the subject matter, parties and issues identical, and held the Plaintiffs could not evade res judicata by adding new causes of action. The suit was held to be an abuse of process aimed at avoiding the consent judgment. The application was allowed in its entirety; the Originating Summons was struck out and the case closed, with costs of both the suit and the application awarded to the Defendant. The consolidation prayer was not granted in the final orders.

Key legal issues

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01

Whether the Originating Summons was res judicata to Mombasa HCCC No. 52 of 2013

Holding

Yes - the subject matter (the charge over the suit property), the parties and the issues were the same; the earlier suit was concluded by a consent judgment recorded on 17th October 2013, and the plaintiffs were attempting to relitigate matters that ought to have been raised there

Reasoning

The court compared the pleadings and found the subject matter and parties identical. The consent judgment was a final determination of the loan/charge dispute. Citing E.T v Attorney General and Omondi v National Bank of Kenya, the court held that a litigant cannot evade res judicata by cosmetic relabelling of causes of action; issues that could have been raised in the former suit are barred.

p. 25
02

Whether the Defendant was entitled to striking-out orders

Holding

Yes - the suit offended Order 2 Rule 15 and Order 4 Rule 1(1)(f) of the Civil Procedure Rules as res judicata and an abuse of process, and was struck out

Reasoning

The court invoked Order 2 Rule 15 (abuse of process as a ground for striking out pleadings) and Order 4 Rule 1(1)(f) requiring an averment of no previous proceedings over the same subject matter. The plaintiffs' own supporting affidavit admitted the earlier suit and consent. Striking out was warranted notwithstanding the general reluctance to dismiss suits summarily.

p. 26
03

Costs of the application and the suit

Holding

Costs follow the event under Section 27(1) of the Civil Procedure Act; the successful Defendant was awarded costs of both the application and the suit

Reasoning

The court applied Section 27(1) of the Civil Procedure Act and Supreme Court decisions (Jasbir Rai Singh v Tarchalan Singh; Cecilia Karuru Ngayo v Barclays Bank) that costs follow the event. Having found the suit liable to be struck out, the Defendant succeeded and was entitled to costs.

Legal principles established

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  • For res judicata to be upheld, the elements of Section 7 of the Civil Procedure Act must be satisfied conjunctively
  • Parties cannot evade res judicata by adding new parties or causes of action in a subsequent suit
  • A suit that relitigates matters concluded in a consent judgment is an abuse of process and liable to be struck out

Court orders

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  1. 1.The Notice of Motion application dated 16th November, 2022 is allowed in its entirety
  2. 2.The suit commenced by Originating Summons dated 3rd June, 2022 is struck out as res judicata to Mombasa HCCC No. 52 of 2013 and the case is closed altogether
  3. 3.Costs of the Originating Summons and of the Notice of Motion dated 16th November, 2022 are awarded to the Defendant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 5, 7, 27(1)
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Environment and Land Court ActSections 13, 28
  • Civil Procedure Rules, 2010Order 2 Rule 15; Order 4 Rule 1(1)(f)
  • Land Registration ActSection 28

Cases cited (23)

  • Ngugi Kiuna v Nelly Wanjiru Mwenje & 4 Others
    Nairobi HCA Civil Appeal No. 117 of 2018

    Elements of res judicata under Section 7 must be satisfied conjunctively; appeal allowed where suits were not substantially similar

  • Maithene Malindi Enterprises Ltd v Kaniki Karisa Kaniki & 2 Others
    [2018] eKLR

    Conjunctive ingredients of res judicata

  • Henderson v Henderson
    [1843] 67 ER 313

    Res judicata extends to every point properly belonging to the subject of litigation

  • Evanson Gachie Kariuki & 2 Others v Francis Kariuki Wachira & Another
    Nairobi HCA Appeal No. 270 of 2014

    Essence of res judicata; fraud not in issue in prior suit cannot found a res judicata bar

  • William Koross v Hezekiah Kiptoo Komen & 4 Others
    [2015] EKLR

    Philosophy of finality behind res judicata

  • Suleiman Kuweah Gakuria & Another v Douglas Mwangi & 4 Others
    Mombasa ELC No. 134 of 2021

    Ingredients of res judicata and interplay of Sections 6 and 7 of the Civil Procedure Act

  • John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others
    [2015] eKLR

    Public interest rationale of res judicata

  • Geyser International Assets Limited v The Attorney General & 3 Others
    Mombasa ELC Petition No. 209 of 2015

    Ingredients of res judicata; issues distinct where matter not heard and concluded

  • Zipporah Njoki Kangara v Rock and Pure Limited & 3 Others
    Mombasa ELC No. 136 of 2021

    ELC jurisdiction over land disputes; Owners of Motor Vessel Lilian S principle

  • Owners of Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Limited
    [1989] 1 KLR

    Jurisdiction is everything; a court without jurisdiction downs its tools

  • Enacta Limited v Martin Mureithi Nagari & 5 Others
    Mombasa ELC No. E228 of 2021

    Striking out is discretionary; Article 159 against procedural technicalities

  • Kenya Commercial Finance Co. Limited v Richard A Onditi
    [2010] eKLR

    Court should weigh options before striking out an action

  • Kenya Oil Company Limited v Jayantilal Dharamshi Gosrani
    Nairobi HCA Appeal No. 324 of 2005

    Discretion to strike out should be used sparingly; D.T. Dobie principle

  • Safepak Limited v Henry Wambega & 11 Others
    Mombasa HCA Appeal No. 8 of 2019

    ELC jurisdiction over land matters; striking out power to be exercised sparingly and only in clearest cases

  • D.T. Dobie & Company Kenya Limited v Joseph Mbaria Muchina & Another
    [1980] eKLR

    No suit ought to be summarily dismissed unless hopeless and beyond redemption

  • Yaya Towers Limited v Trade Bank Limited (In Liquidation)
    Civil Appeal No. 35 of 2000

    Inherent jurisdiction to dismiss abuse of process to be sparingly exercised

  • Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others
    [2017] eKLR

    Conjunctive elements of res judicata and its rationale

  • E.T v Attorney General & Another
    [2012] eKLR

    Courts must guard against litigants evading res judicata by introducing new causes of action

  • Omondi v National Bank of Kenya Limited and Others
    [2001] EA 177

    Parties cannot evade res judicata by adding parties or causes of action

  • Njangu v Wambugu and another
    Nairobi HCCC No. 2340 of 1991 (unreported)

    Cosmetic relabelling of a case cannot defeat res judicata

  • Gurbachau v Yowani Ekori
    (1958) EA 450

    Adopted Henderson v Henderson on res judicata

  • Jasbir Rai Singh v Tarchalan Singh
    eKLR [2014]

    Costs follow the event under Section 27(1)

  • Cecilia Karuru Ngayo v Barclays Bank of Kenya Limited
    eKLR [2014]

    Costs follow the event

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

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, "Dzombo & 2 others v KCB Bank Kenya Limited", Case Analysis (2023). Environment & Land Case E061 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20474/eng@2023-10-02

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