[2019] KEHC 3148 (KLR)
The court found that the application dated 29th June 2018 was res judicata as it raised issues and prayers that had already been determined in a previous application between the same parties, save for minor differences regarding interest and figures. The court held that the doctrine of res judicata, as anchored in...
Source-derived case information.
- Citation
- [2019] KEHC 3148 (KLR)
- Parties
- Plaintiff: Cosmas Stephen Nabungolo; Defendant: African Banking Corporation Ltd
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Case 24 of 2018
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection and Application for Injunction
- Outcome
- application dismissed
- Judges
- HK Chemitei
- Legal Topics
- Res Judicata, Injunctive Relief, Statutory Power of Sale, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cosmas Stephen Nabungolo
Plaintiff
African Banking Corporation Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection and Application for Injunction
Legal Issues
- 1 Whether the application dated 29th June 2018 is res judicata in light of a previous ruling on a similar application between the same parties.
- 2 Whether the applicant is entitled to injunctive relief restraining the respondent from exercising its statutory power of sale.
Ratio Decidendi
The court found that the application dated 29th June 2018 was res judicata as it raised issues and prayers that had already been determined in a previous application between the same parties, save for minor differences regarding interest and figures. The court held that the doctrine of res judicata, as anchored in Section 7 of the Civil Procedure Act, barred the court from entertaining the application. The court further found that the applicant's attempt to re-litigate the same issues amounted to a mere facelift of the previous suit and constituted an abuse of the court process. Consequently, the preliminary objection was upheld and the application was dismissed with costs to the respondent.
Court Disposition
application dismissed
Orders
- The preliminary objection is allowed.
- The application dated 29th June 2018 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
CIVIL CASE NO. 24 OF 2018
(Originally Kitale ELC Case No. 105 of 2017)
COSMAS STEPHEN NABUNGOLO.................................................PLAINITFF
VERSUS
AFRICAN BANKING CORPORATION LTD................................DEFENDANT
R U L I N G
1. The Applicant herein vide his application dated 26th June 2018 prayed for injunctive orders against the Respondent from exercising its statutory power of sale. The Respondent had advertised the sale of the securities deposited by the Applicant/Plaintiff in regard to the loan facility advanced by the Defendant. M/s Igare Auctioneers had advertised the same in the Standard Newspaper of 26th June 2018.
2. When the application came up for hearing, the Respondent filed a preliminary objection on a point of law stating interalia that the same was res judicata. That similar application has been decided vide the ELC court's decision of 29th May 2018 in the application dated 13th June 2017. In the premises, the application should be dismissed.
3. Parties did file their written submissions and were permitted to highlight the same. I have also perused the attached sets of authorities all in support or in opposition of the preliminary objection.
4. The doctrine of Res Judicata is well anchored in Section 7 of the Civil Procedure Act which states;
“ 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 their 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.”
5. I have perused the application dated 29th June 2018 and that dated 13th June 2017 as well as the court's ruling dated 29th May 2018 and find that they all relate to the same parties and same prayers. The only difference in the current application which is found in the applicant supporting affidavit sworn on 29th June 2018 are issues to do with interest and that the figures arrived to by the Respondent are inordinately high.
6. Other than this, the entire application is res judicata. The issues though adjudicated by my brother Njoroge J at ELC Court, the findings have not been challenged.
7. As was found by Kuloba J in Mwangi Njangu Vs Meshack Mbogo Wambugu Civil suit No. 2340/1991, all that the Applicant has done is to do a “facelift” to the suit.
8. The application for injunction was dismissed. Again he had applied for similar orders. This to say the least is abuse of court process.
9. The preliminary objection is allowed. The application dated 29th June 2018 is dismissed with costs to the Respondent.
Orders Accordingly.
Delivered, signed and dated at Kitale this 2nd day of April, 2019.
___________________
H.K. CHEMITEI
JUDGE
2/4/19
In the presence of;
Mr. Ojicho for the Plaintiff
Wanjala holding brief for Makege for the Respondent
Court Assistant – Kirong
Ruling read in open court.