[2021] KEHC 5872 (KLR)
The court held that the issue of jurisdiction had already been raised and determined in a previous application for injunction, making it res judicata under section 7 of the Civil Procedure Act. The defendant could not raise the same issue again. Furthermore, by filing a contemporaneous application for accounts, the...
Source-derived case information.
- Citation
- [2021] KEHC 5872 (KLR)
- Parties
- Plaintiff: Mary Njeri Gakunga; Plaintiff: Brian Ndungu Gakunga; Plaintiff: Jennifer Caroline Gakunga; Defendant: Middle East Bank Kenya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 151 of 2019
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Applications
- Outcome
- Defendant's applications dismissed; costs awarded to plaintiffs.
- Judges
- B Ojoo
- Legal Topics
- Jurisdiction of High Court, Injunctive Relief, Res Judicata, Loan Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Njeri Gakunga
Plaintiff
Brian Ndungu Gakunga
Plaintiff
Jennifer Caroline Gakunga
Plaintiff
Middle East Bank Kenya
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Applications
Legal Issues
- 1 Whether the High Court has jurisdiction to entertain matters relating to land, validity of a charge, and statutory notices in the context of a loan dispute.
- 2 Whether the defendant is barred by res judicata from raising the issue of jurisdiction again.
- 3 Whether the defendant's application for accounts amounts to an admission of the Court's jurisdiction.
Ratio Decidendi
The court held that the issue of jurisdiction had already been raised and determined in a previous application for injunction, making it res judicata under section 7 of the Civil Procedure Act. The defendant could not raise the same issue again. Furthermore, by filing a contemporaneous application for accounts, the defendant had admitted the court's jurisdiction and could not approbate and reprobate. The dispute was fundamentally contractual, concerning the amount due and the security for the loan, and thus within the court's jurisdiction. The application challenging jurisdiction was therefore dismissed with costs. The second application for accounts was found to be overtaken by events,...
Court Disposition
Defendant's applications dismissed; costs awarded to plaintiffs.
Orders
- The defendant's application challenging jurisdiction is dismissed with costs.
- The defendant's application for accounts is overtaken by events; parties to deal with the accounts filed at trial.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & TAX DIVISION
CIVIL SUIT NUMBER 151 OF 2019
MARY NJERI GAKUNGA .........................................................1ST PLAINTIFF
BRIAN NDUNGU GAKUNGA ..................................................2ND PLAINTIFF
JENNIFER CAROLINE GAKUNGA .........................................3RD PLAINTIFF
VERSUS
MIDDLE EAST BANK KENYA .......................................................DEFENDANT
R U L I N G
1. Before Court are 2 applications lodged by the defendant and dated 9/3/2020, respectively. The first Motion was brought under Order 2 rule 15 of the Civil Procedure Rules.It sought to have parts of the plaint that relate to land, the validity of the subject Charge and/or the validity of the Statutory Notices served by the defendant, dismissed and the interim injunction made on 5/11/2019 be set aside.
2. The grounds upon which the said application was made were that this Court lacked jurisdiction to entertain matters relating to land, the validity of a charge, statutory notices served thereon and/or to issue interim injunctions stopping the defendant from exercising its power of sale over charged property.
3. On considering the application, the Court found the same to be frivolous and vexatious. Firstly, the defendant had raised the issue of jurisdiction in its grounds of opposition dated 19/7/2019 which had been filed in opposition to the plaintiff’s application for injunction dated 4/7/2019. That application had sought an interlocutory injunction.
4. The Court delivered its ruling on that application on 5/11/2019 and granted the injunction sought. Vide Explanation 5 of section 7 of the Civil Procedure Act, the issue of jurisdiction was therefore res judicata. Explanation 5 aforesaidprovides: -
“Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.”
5. The defendant having raised the issue as aforesaid, it cannot purport to raise it again before this Court.
6. The second reason why that application cannot lie is that, contemporaneous with the filing of that Motion, the defendant lodged a Chamber Summons seeking production of accounts. One cannot approbate and reprobate at the same time. By its own act of lodging the said application, the defendant had admitted that this Court had jurisdiction to entertain the matter.
7. Finally, this suit arises out of a dispute relating to a loan facility afforded to the late Aloysius Ndungu Gakunga by the defendant. The main issues in contention, as stated in the ruling of 5/11/2019, is what is the exact amount due and whether or not the property known as L.R.No. 10871/2 Muthuri was given as security for the said facility. It is purely a contractual issue.
8. Accordingly, the Court has jurisdiction and the application is dismissed with costs.
9. The second application was a Chamber Summons dated 9/3/2020. It was brought pursuant to Order 20, Rule 1 of the Civil Procedure Rules. In the Summons, the defendant sought orders for proper accounts to be taken to ascertain the amount owed by the plaintiffs, as the personal representatives of the deceased.
10. The order for accounts had been made by Kasango J. The parties informed the Court that the same had been filed. In the premises, the application has been overtaken by events. Let the parties deal with the accounts that have been filed at the trial.
It is so ordered.
DATED and DELIVEREDat Nairobi this 24th day of June, 2021.
A. MABEYA, FCI Arb
JUDGE