[2023] KEHC 26893 (KLR)

Chembe Properties Limited v Consolidated Bank of Kenya Limited (Miscellaneous Application 107 of 2022) [2023] KEHC 26893 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26893 (KLR)

Republic of Kenya

In the High Court at Malindi

Miscellaneous Application 107 of 2022

SM Githinji, J

December 14, 2023

Between

Chembe Properties Limited

Applicant

and

Consolidated Bank Of Kenya Limited

Respondent

Ruling

1. The Applicant herein has filed a Notice of Motion application dated 20th December, 2022 under Certificate of Urgency brought under Order 40 Rule 1,2 and 3, Order 51 Rule 1 of the Civil Procedure Rules 2010 and Section 1A, 1B and 3A of the Civil Procedure Act Cap 21 Laws of Kenya seeking the following orders;1. Spent.2. That this Honourable court do issue a temporary injunction restraining the Respondent by itself, its instructed Auctioneers, agents, employees, servants from selling, disposing, alienating and/or interfering in any manner whatsoever with the motor vehicle registration No. KDD 917H pending the hearing and determination of this application inter partes.3. That upon inter partes hearing this Honourable Court do issue an order for a temporary injunction restraining the Respondent by itself, its instructed Auctioneers, agents, employees, servants from repossessing and/or interfering in any manner whatsoever with the Plaintiff’s use of the motor vehicle registration No. KDD 917H pending the hearing and determination of this application and Intended Appeal.4. That there be a temporary prohibitory injunction restraining the Respondent by itself, their agents, servants and/or employees from collecting any accrued interest arrears from the monthly instalments of June 2022 and during such period the Respondent has been illegally detaining the motor vehicle registration No. KDD 917H pending the hearing and determination of this application and Intended Appeal.5. That costs of this application be borne by the Respondent.

2. The application was supported by the grounds on the face of it and the supporting affidavit sworn by Shaib Hamisi Mtuwa on the same day who deposed that the applicant on the 17th day of May, 2021 executed a letter of offer dated 4th May, 2021 from the Respondent where it agreed to enter into an Asset Finance Facility Agreement with the Respondent whereby the Respondent agreed to finance the Applicant to acquire a motor vehicle (Truck) registration No. KDD 917 H which motor vehicle is registered in the names of the Applicant and Respondent. According to him, the Asset Finance Facility was for Kshs. 5,040,000/- and the Plaintiff was to repay the subject loan in 36 monthly installments of approximately Kshs. 169,818/- per month from 31st August, 2021 and end on 31st July, 2025.

3. That the subject motor vehicle as registered in the name of both the Applicant and the Respondent was being used by the Applicant in its transport business. That despite meeting its obligations under the said loan agreement by making the repayment instalments, on or about the 26th June, 2022 the Respondent without any colour of right sent unknown people to repossess the motor vehicle which actions are in total breach of the said loan agreement. He also deposed that due to the Respondent’s illegal actions, the Applicant is suffering immense loss as it cannot service the loan as the proceeds from the said motor vehicle were the ones being used to offset the monthly loan repayment installments of the subject agreement. Further, that the continuous illegal detention of the motor vehicle is detrimental as the Applicant is apprehensive that the motor vehicle might be wearing out and is of no economic value if it does not generate income to enable the applicant repay the loan.

4. In response, the Respondent filed a Replying affidavit sworn by Felix Murage on the 8th February, 2023. He stated that the applicant filed a suit before the Chief Magistrate’s Court seeking several orders among them an application for injunction restraining the Respondent from selling, disposing or alienating the Motor vehicle in question. That the applicant’s application was heard and dismissed by a ruling delivered on 16th December, 2022 and according to him, the prayers sought in the present application are similar to the prayers in the application before the magistrate’s court which were dismissed.

5. He further stated that the prayers sought by the applicant in this application cannot be granted as they were heard and determined by the trial magistrate and this application is therefore res judicata and ought to be struck out.

DISPOSITION 6. I have considered the application herein, the response as well as the submissions by the parties.

7. The applicant has without a doubt admitted that they instituted a suit being Malindi CMCC No. E0203 of 2022 Chembe Properties v Consolidated Bank of Kenya Limited through a Notice of Motion application dated 5th July, 2022 where it sought among other orders an injunction against the Respondent which application was dismissed vide a ruling dated 16th December, 2022. In my view, what is for determination is whether the present application before me is res judicata.

8. The doctrine of res judicata is set out in the Civil Procedure Act at section 7 as follows:“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them can claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”

9. The doctrine implies that for a matter to be res judicata, the matters in issue must be similar to those which were previously in dispute between the same parties and the same having been determined on merits by a court of competent jurisdiction. The court in the English case of Henderson v Henderson (1843-60) All E.R 378, observed thus:“…where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”

10. The applicant in its application having admitted that the same application seeking similar prayers for injunction was dismissed vide a ruling dated 16th December, 2022 also alluded to the fact that they were dissatisfied with the said ruling of the subordinate court and intended to file an appeal to this court against the said ruling. Contrary to that, the applicant has opted to file a similar application seeking the same orders that they had sought in the lower court. This fact has not been disputed. It therefore follows that a court will as well invoke the doctrine in instances where a party raises issues in a subsequent suit, wherein he/she ought to have raised the issues in the previous suit as between the same parties.

11. In my view and in line with the provisions of Section 7 of the Civil Procedure Act, this court cannot again be called upon to determine an application where an earlier decision on the issue was made by a competent court. Having said that, I make a conclusion that this application is not only res judicata but an abuse of the court process and the same is struck out with costs to the Respondent.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 14TH DAY OF DECEMBER, 2023. S.M. GITHINJIJUDGEIn the absence of; -1. Mr Kiloonzo for the Applicant2. Miss Njiru for the RespondentParties be notified.S.M. GITHINJIJUDGE14/12/2023