[2020] KEHC 1266 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

Coram: D. K. Kemei – J

CIVIL APPEAL NO. 65 OF 2020

(FormerlyELC APPEAL 28 OF 2020)

LIZZIE NDILA MASSAWE........................1ST APPELLANT/APPLICANT

SAID HAILE NGUI....................................2ND APPELLANT/ APPLICANT

VERSUS

SIDIAN BANK..........................................................................RESPONDENT

RULING

1. The Applicants filed this application citing the Judicature Act CAP 8, the High Court (Practice and procedure Rules (Part 1 Rule 3) Section 1A, 1B and 3A of the Civil Procedure Act, Cap 21 laws of Kenya; Order 42 Rule 6 of the Civil Procedure Rules and all other powers and enabling provisions of the law. The only prayer remaining for determination herein is as follows:

a) That an order do issue for an injunction to restrain the respondent, its servants and/ or agents from selling, offering for sale, advertising, alienating, transferring by public auction or private treaty, disposing off or otherwise completing by conveyance, transfer of any sale concluded by public auction or private treaty, taking possession, appointing receivers or exercising any power conferred by section 90(3) of the Land Act, leasing, letting, charging or otherwise interfering with all properties known as MACHAKOS TOWN BLOCK 3/4095 and MACHAKOS TOWN BLOCK 3/4096(the suit properties)pending the hearing and final determination of the intended appeal. There is also a prayer for costs of the application to be provided for.

2. The application is further supported by the affidavit of the 2nd appellant that was deponed on 6. 8.2020. The grounds of the application as disclosed in the notice of motion are as follows:

a) The applicants are man and wife who built their residential home on the suit property and obtained a loan facility of Kshs 13m/- from the respondent using the suit property as security.

b) That the applicants failed to make repayments as scheduled however a request for restructuring was allowed and the applicants made irregular repayments.

c) That due to restriction of movement, the applicants were unable to pay hence made a further request for restructuring that was denied and the respondent intimated that notices to recover securities were to be issued.

d) That the sale would be illegal as the applicants were not given an opportunity to remedy the default prompting the applicants to file an application for an injunction that was denied and that the respondent is in the process of instructing auctioneers to evict the appellants.

e) That the appellants filed an appeal against the decision of the trial court which appeal may be rendered nugatory if the orders sought are not granted and it is in the interests of justice that the application be allowed.

f) That the instant application was brought timeously.

3. Vide supporting affidavit filed on 7. 8.2020, the 2nd applicant annexed a copy of an affidavit of marriage, copies of the matrimonial home, a copy of the charge, letters requesting for loan restructuring and their respective responses, copies of the statutory notices, a memorandum of appeal and letter requesting for typed proceedings in the trial court.

4. In reply Beverline Chweya, a legal officer at the respondent filed an affidavit deponed on 17. 8.2020. She averred that the instant application is res judicata Machakos CM ELC 48 of 2020: Lizzie Ndila Massawe & Another v Sidian Bank Ltd that is dated 20. 5.2020. It was averred that the mentioned application was heard and determined and a ruling delivered dismissing the application. It was pointed out that the suit in the trial court is still alive and no stay of proceedings had been sought. It was averred that the memorandum of appeal offends Order 43(2) and (3) of the Civil Procedure Rules as there was no leave of the subordinate court to institute the instant appeal. The court was urged to dismiss the application.

5. In rejoinder, the 1st applicant vide affidavit deponed on 26. 8.2020 submitted that she was appealing against the ruling of the trial court, which appeal was as of right by dint of Order 43 Rule 1 (u) of the Civil Procedure Rules. The court was urged to grant the injunction pending the determination of the appeal.

6. The application was canvassed vide written submissions. Submitting in support of the application, counsel for the applicant vide submissions dated 28. 9.2020 cited the provisions of Order 42 Rule 6 of the Civil Procedure Rules as well as the case of Giella v Cassman Brown (1973) EA 358 and urged the court to allow the application as they had a prima facie case that the relevant notices were not issued as required under the Land Act. It was the argument of counsel that they shall suffer irreparable injury that could not be atoned by damages and that the balance of convenience swayed in their favour. The court was urged to grant status quo orders in favour of the applicants.

7. In response, the respondent’s counsel framed two issues for determination in their submissions. Firstly, whether the application dated 6. 8.2020 is incompetent for being res judicata and secondly, whether the memorandum of appeal is fatally defective. In respect of the 1st issue, reliance was placed on section 7 of the Civil Procedure Act. Counsel in appreciating the case of Ferdinand Ndungu Waititu v IEBC & 8 Others (2013) eKLR counselled the applicant to seek a remedy for stay of proceedings in the trial court where the main suit is pending.

8. In respect of the 2nd issue, reliance was placed on Order 43(2) and (3) of the Civil Procedure Rules in submitting that the memorandum of appeal was defective for want of leave to file an appeal. Cited was the case of Sukari Industries Ltd v Olale George Onyango (2020) eKLRthat reiterated the mandatory provisions of the law.

9. Having considered the pleadings and submissions by the parties my issues for determination are Firstly, whether the application dated 6. 8.2020 is res judicata; Secondly, whether the issues raised in the application filed on 6. 8.2020 are wholly or substantially similar to issues raised in the application dated 7. 5.2020 in the subordinate court where a ruling was delivered on 23. 7.2020 by the said court and Thirdly, whether the applicant has satisfied the conditions for grant of an interim injunction.

10. To ascertain the second issue for my determination, it is necessary to closely examine the issues raised in the dismissed application and the issues presented in this application. The ruling delivered on 23. 7.2020 dismissed the application.

11. The bone of contention in the application dated 20. 5.2020 was the sale of the suit property by the respondent. The court then went ahead to make a final determination on the said issuevide the rulingdelivered on 23. 7.2020.

12. From the foregoing, I find that what was framed prayer 2 and 3 of the application in the trial court dated 20. 5.2020 were conclusively handled by the court in the ruling delivered on 23. 7.2020 and the instant application seeks the same remedy through the backdoor. I find that all of the issues for determination in the application dated 20. 5.2020 before the trial court are the same for determination in the instant application before this court.

13. I shall now address what I framed as the first issue for determination. On what constitutes res judicata, I adopt the following passage in the dictum of Wigram V-C, in Henderson v Henderson(1843) 67 ER 313 as it summarizes res judicata:-

" … where a given matter becomes the subject of litigation in, and 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 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 cases, 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."

14. When res judicatais raised, a court of law should always look at the decision claimed to have settled the issues in question and the entire pleadings of the previous case and the instant case- to ascertain; (i) what issues were really determined in the previous case; and (ii) whether they are the same in the subsequent case and were covered by the decision of the earlier case. One more thing; the court should ascertain whether the parties are the same or are litigating under the same title and that the previous case was determined by a court of competent jurisdiction.

15. The test of determining whether a matter is res judicatais set out under section 7 of the Civil Procedure Act. In the case of Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR, the Supreme Court while considering the said provision held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is:

"(a) The suit or issue was directly and substantially in issue in the former suit.

(b) That former suit was between the same parties or parties under whom they or any of them claim.

(c) Those parties were litigating under the same title.

(d) The issue was heard and finally determined in the former suit.

(e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

16. For the following reasons, I find the instant application is res judicata:

i) The applicants pleaded in both the application dated 20. 5.2020 and the instant application that they were not served with notices in accordance with the law and that their matrimonial home is in danger of being sold to satisfy a loan that they took.

ii) The applicants had brought before this Court, in another way and disguised as an injunction pending appeal an issue which has already been addressed by the lower court.

iii) The sale of the suit property on which the application is founded has already been put before the lower court that is of competent jurisdiction and has been adjudicated upon.

iv) The points raised by the applicant in the instant application properly belonged to the subject of litigation which has already been adjudicated upon.

v) The applicant ought to have exercised reasonable diligence and should have sought stay of proceedings in the trial court and now purports to bring the same claim clothed in another form with the same remedy in view.

17. Having so found, I deem it unnecessary to consider the 3rd issue framed for determination and proceed to dismiss the application dated 6. 8.2020 for being barred by the doctrine of res judicata. The costs hereof are awarded to the Respondent.

It is so ordered.

Dated and delivered at Machakos this 3rd day of December, 2020.

D. K. Kemei

Judge