[2004] KEHC 1393 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL DIVISION, MILIMANI

CIVIL CASE NO.635 OF 2003

DAVID GEORGE KATIBA....................................................PLAINTIFF

VERSUS

KENYA COMMERCIAL BANK LTD..................................DEFENDANT

RULING

This application which I will refer to as “the present application” was brought by the Plaintiff who seeks interlocutory injunctive relief to restrain the Defendant from selling, alienating or otherwise, disposing of the Plaintiff’s land known as Title No.Loc.10/WANJENGI/121. The application is supported by the affidavit of the Plaintiff.

The said property is sought to be sold by the Defendant in its exercise of its Statutory Power of Sale under a charge whereby the Plaintiff charged the said property to secure a loan of shs 1,400,000/=. The Plaintiff’s case in the present application is that the Defendant promised the Plaintiff that it would not auction his land until after the final determination of his Civil Appeal No.140 of 2002 against United Insurance Company Limited which appeal is still pending before the Court of Appeal and is scheduled to be heard on 17th November, 2004 and that by a letter of 18th October, 1999 the Defendant had agreed not to charge interest on payment of upto 1,000,000/= of the principal sum which principal sum has been paid in full. In his Supporting Affidavit the Plaintiff has deponed that as he has paid the principal sum as requested by the Defendant the Defendant is estopped from auctioning his property. He has further deponed that the property in question is his ancestral land on which he has constructed a residential house and if the same is sold he will suffer irreparable loss. For the above reasons the Plaintiff seeks an injunctive relief.

When this application came before me for hearing on 22nd October, 2004, Counsel for the Defendant raised objection to the same on the ground that this application is res judicata frivolous, vexatious and an abuse of the process of the Court. Counsel for the Defendant submitted that this application is the same as the Plaintiff’s application dated 7th October 2003 hereinafter referred to as the 1st application. The present application has been brought under the same provisions of the Law. It seeks the same reliefs and is based on the same grounds as the 1st application which application was compromised by an order made on 9th October, 2003 which order has not been complied with by the Plaintiff. As the Plaintiff is in default the Defendant is entitled to sell the Plaintiff’s property. In Counsel’s view the present application is clearly res judicataand should be rejected. Reliance was placed on the following Court of Appeal decision:-

1. Uhuru Highway Development Limited –v- Central Bank of Kenya Ltd: Nairobi CA. NO.36 of 1996 (un reported)

Responding to the Preliminary Objection raised by the Defendant, Counsel for the Plaintiff submitted that the first application was not conclusively determined. Indeed the order of 9th October 2003 had been varied by an order of 9th December, 2003. Counsel further submitted that the Plaintiff complied with the order of 9th October, 2003 as varied by the one of 9th December, 2003 when he paid Kshs 410,000/= to the Defendant on 10th February, 2004. Upon payment of this sum the Defendant was estopped from selling the Plaintiff’s property. In Counsel’s view a fresh cause of action accrued to the Plaintiff and he was entitled to make the present application when the Defendant once more threatened to sell his property. It was further submitted for the Plaintiff that the present applications is not res judicata as all that the Plaintiff is doing is trying to enforce an order of the Court. Reliance was placed on the case of Mburu Kinyua –v- Gachini Tuti (1978) KLR 69.

In a brief reply Counsel for the Defendant submitted that the order of 9th October, 2003 on the 1st application was conclusive and submissions made for the Plaintiff in fact supported the position taken by the Defendant.

I have considered the applications, and the submissions of the Advocates of the parties. I have also carefully perused the authorities cited. Having done so I take the following view of the matter. The prayers sought in both applications are identical. Both seek injunctive reliefs in identical terms. Both applications were brought under Order 39 rules 1,3 and 9 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act and all other enabling provisions of the Law. On 9th October 2003, Mutungi J. after hearing the 1st application granted the following orders:

1. Restraining the Defendant/Agents several Respondents from carrying out the intended sale of the Charged property scheduled for today 9. 10. 2003 until December 9th 2003.

2. Stops the planned auction sale scheduled for today until 9. 12. 2003.

3. Orders that the costs of this application be paid by the Applicant herein together with costs of the auctioneers

4. The Respondent/bank is hereby authorized to proceed with the sale if the Ksh 410,000/= is not paid by the Applicant on or before 9. 12. 2003.

5. Counsel for the Respondent to inform his client of this order.

On 9th December, 2003, Order (2) made by Mutungi J. was varied by consent to read 9th January 2004.

It is now settled that the doctrine of res judicata applies to interlocutory applications within the same suit. Their Lordships in the Uhuru Highway Development case (supra) said at page 31 of the Judgment:

“The long and short of all this is that once an application for injunction within a suit has been heard and determined under the pri nciples laid down in Giella – v- Cassman Brown a similar application cannot be brought unless there are new facts not brought before court earlier after exercise of due diligence which merit a re -hearing and possible departure from the previous ruling.”

The present application and the 1st application are identical save for ground (b) in the present application which ground is as follows:-

(b) that the Defendant by its letter dated 18th October 1999 agreed that if and when the Plaintiff paid between Kshs 950,000/= and Kshs 1,000,000/= to it the balance of the principal sum of Kshs 1. 4. million will be placed in a suspense account and thus will not attract further interest. The Plaintiff has fully paid the principal sum.

The letter referred to in this paragraph was available at the time of the 1st application. It cannot therefore constitute a “new fact not brought before court earlier after the exercise of due diligence which merit a re-hearing and possible departure from the previous ruling.”

The ruling of Mutungi J. was not ambiguous. It dealt with the 1st application. If the Plaintiff was not happy with it or if he felt circumstances required a variation of the same, he should have in my view sought a review of the said order. It is not correct to say that the Plaintiff merely wants to enforce the order made on the 1st application. One does not enforce an order made pursuant to an application for injunction by another application for injunction. There must be an end to interlocutory applications as much as there ought to be an end to litigation.

In the result I am constrained to hold that the present application does not lie as it is res judicata . The Preliminary Objection is upheld with the consequence that the Plaintiff’s application dated 19th October, 2004 is struck out with costs to the Defendant. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 4th DAY OF NOVEMBER, 2004.

F. AZANGALALA

AG. JUDGE