[2022] KEHC 1939 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

COMMERCIAL CASE NO.1 OF 2021

WILLIAM KURIA JOSIAH...............................................APPLICANT

-VERSUS-

BANK OF AFRICA.................................................1ST RESPONDENT

REGENT AUCTIONEERS...................................2ND RESPONDENT

RULING

1. WILLIAM KURIA JOSIAH, the plaintiff filed this suit by plaint dated 28th December, 2020. He seeks by that plaint permanent injunction restraining BANK OF AFRICA, the 1st defendant and REGENT AUCITONEERSthe 2nd defendant from advertising selling or taking possession the suit property LIMURU/BIBIRIONI/T.909.

2. The plaintiff admits in that plaint that he guaranteed the loan facility issued by the 1st defendant to a company called Techspa General Supplies Ltd. The plaintiff further pleaded that the 1st defendant gave instructions to the 2nd defendant instructing that defendant to sell the suit property by public auction which instructions he further pleaded failed to comply with the provisions of section 90, 96 and 97 of the Land Act (2012).

3. The plaintiff in filing his plaint simultaneously filed an interlocutory application a Notice of Motion dated 28th December, 2020. The plaintiff prayed and sought in that application interim injunction in terms of the final prayers in the plaint.

4. The defendants filed replying affidavit and preliminary objection in response to that interlocutory application. The preliminary objections raised are replicated in the replying affidavit and accordingly it will suffice to consider the replying affidavit.

5. The replying affidavit is sworn by George Nyamai and is dated 14th June, 2021. In that affidavit, the deponent stated that the plaintiff failed to disclose that he had filed two previous suits which make this present suit res judicata. Further, that the 1st defendant had complied with the provisions of the Land Act as pertains the exercise of 1st defendant’s statutory power of sale.

6. The plaintiff did not respond to the contents of the replying affidavit.

ANALYSIS AND DETERMINATION

7. There are two issues for consideration in this ruling. Firstly, is whether this suit and or the interlocutory application are res judicata. Secondly, is whether the 1st defendant has complied with requisite and law under the Lands Act (2012).

8. Section 7 of the Civil Procedure Act sets out when a matter can be considered res judicata. That Section provides:-

“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 them claim, litigating under the same title, in a court competent to try such subsequent suit in which such issues has been subsequently raised, and has been heard and finally decided by suchcourt.

9. There are two aspects of res judicata. The first prevents a party from re-litigating a claim that was decided and a claim that could have been raised in earlier proceedings. Res judicata embraces not only those things which were proven by the earlier action but also those that could have been proven in that action. The second aspect of res judicata is that it applies between the same parties or between parties under whom they or any of them claim.

10. Black’s Law Dictionary 10th Edition defines res judicata as:-

“An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties …”

11. The 1st defendant brought to this Court an interlocutory application dated 13th May, 2016 filed in HCCC No. 176 of 2016 Nairobi by the plaintiff and Techspa General Supplies Limited. The title of that case is:-

WILLIAM KURIA JOSIAH ………………………….....1ST PLAINTIFF

TECHSPA GENERAL SUPPLIES LIMITED…………2ND PLAINTIFF

VS

BANK OF AFRICA (KENYA) LIMITED ………………..DEFENDANT

12. By that interlocutory application dated 13th May, 2016 in that case HCCC 176 of 2016, the plaintiffs sought injunction to restrain the Bank from selling, disposing the suit property. The court determined that application by its Ruling dated 21st September, 2017. It is worth citing the case CLEMENT MASANGA ATONGA VS. LEWKADIA MILUNGI (2021) eKLR thus:-

“24. The essentials ofres judicatain litigation were stated in the case of The INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION V MAINA KIAI & 5 OTHERS, Nairobi CA Civil Appeal No. 105 of 2017 [2017] eKLR, that:

‘… the rule or doctrine of res judicata serves the salutary (sic) aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.’(emphasis mine)”

13. My consideration of the decision made in the HCCC 176 of 2016 leads me to find that the doctrine of res judicata applies to the interlocutory application under consideration. For that reason, I hereby find that res judicata apples to the plaintiff’s Notice of Motion application dated 28th December, 2020. It means this Court cannot proceed to consider the merits of that application. The decision made in HCCC 176 of 2016 prevents the re-litigation of the issue whether an injunction should be granted restraining the 1st defendant from selling the charged property/the suit property in exercise of its statutory power of sale.

14. On the second issue, I am satisfied that the 1st defendant gave requisite statutory notices to the plaintiff and valued the suit property. The plaintiff does also admit indebtedness of the 1st defendant. Having made that admission, an injunction cannot issue where there is merely dispute of how much is due to the bank.

15. The plaintiff clearly failed to satisfy the triple requirements of the case GIELLA VS. CASSMAN BROWN (1973) EA 358 to prove he has prima facie case with probability of success. Having so failed, he is not entitled to prayer sought.

16. It however needs to be stated that the defendants did not prove there was final determination of the suit of HCCC 176 of 2016, in order to satisfy provisions of Section 7 Cap 21 in respect to this suit. It follows that this suit is not res judicata. It is only the interlocutory application Notice of Motion dated 28th December, 2020 that is res judicata. The Notice of Motion was finally determined.

DISPOSITION

17. In the end, I order as follows:-

(a) The Notice of Motion dated 28th December, 2020 is dismissed with costs for being res judicata and accordingly, the interim order for maintenance of status quo is hereby vacated.

(b) The parties in this action are ordered to comply with pre-trial in this case within the next 30 days from today’s date.

(c) At the reading of this Ruling, pre-trial date will be fixed..

RULING DATED AND DELIVERED AT KIAMBU THIS 3RD DAY OF MARCH, 2022.

MARY KASANGO

JUDGE

Coram:

Court Assistant : Mourice

For Plaintiff : - Mr. Lumumba H/B Kimani

For Defendants : - Mr. Omino

RULING delivered virtually.

MARY KASANGO

JUDGE