[1998] KEHC 209 (KLR)
The court found that the matter was not res judicata as section 7 of the Civil Procedure Act did not apply to the present application. However, the court held that the plaintiff must comply with Order 21 Rules 78 and 79 of the Civil Procedure Rules before the court can grant the injunction sought. The plaintiff was...
Source-derived case information.
- Citation
- [1998] KEHC 209 (KLR)
- Parties
- Plaintiff: Sammy Mwangi Kariethe; Defendant: Kenya Commercial Bank Ltd, Nyeri Branch
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 3136 of 1997
- Procedural Posture
- Civil Case / Ruling on Application for Injunction
- Outcome
- Plaintiff invited to show compliance with Order 21 Rules 78 and 79; application for injunction not granted at this stage.
- Legal Topics
- Injunctions, Res Judicata, Sale of Mortgaged Property, Compliance With Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sammy Mwangi Kariethe
Plaintiff
Kenya Commercial Bank Ltd, Nyeri Branch
Defendant
Procedural Posture
Civil Case / Ruling on Application for Injunction
Legal Issues
- 1 Whether the plaintiff is entitled to an injunction restraining the defendant from transferring or advertising for sale certain properties.
- 2 Whether the matter is res judicata under section 7 of the Civil Procedure Act.
- 3 Whether the plaintiff has complied with Order 21 Rules 78 and 79 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the matter was not res judicata as section 7 of the Civil Procedure Act did not apply to the present application. However, the court held that the plaintiff must comply with Order 21 Rules 78 and 79 of the Civil Procedure Rules before the court can grant the injunction sought. The plaintiff was therefore invited to demonstrate compliance with these provisions as a precondition to obtaining the orders sought. The application for injunction could not succeed in the absence of such compliance, notwithstanding the court's finding on res judicata.
Court Disposition
Plaintiff invited to show compliance with Order 21 Rules 78 and 79; application for injunction not granted at this stage.
Orders
- Plaintiff to demonstrate compliance with Order 21 Rules 78 and 79 of the Civil Procedure Rules before further orders can be made.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 3136 OF 1997
SAMMY MWANGI KARIETHE...........................................PLAINTIFF
VERSUS
KENYA COMMERCIAL BANK LTD
NYERI BRANCH..............................................................DEFENDANT
R U L I N G
After the court dismissed the plaintiff’s application for an injunction, some parcels of land were sold to satisfy the decree. Soon thereafter the plaintiff applied to the court for injunction orders under Order 39 Rules 1 and 2 of the Civil Procedure Rules to restrain the respondent from transferring the sold properties and from advertising for sale the remaining properties.
The thrust of the application is that the properties were sold at way below the market or reserved prices.
The learned counsel for the respondent has raised the point that the matter is res-judicata. I have listened to both learned counsel. The provisions of section 7 of the Civil Procedure Act do not apply and, with respect, the matter is not res judicata. However, this is not the end of the problem for the plaintiff applicant. The plaintiff has to comply with order 21 Rules 78 and 79 of the Civil procedure Rules. And so, whereas I have held that the matter is not res-judicata, I now invite the plaintiff to show that he has complied with the said provisions.
Dated and delivered at Nairobi this 26th day of February, 1998.
A. MBOGHOLI MSAGHA
JUDGE