Case ID:181326

Mumbu Holdings Ltd v Spire Bank Ltd & 5 others (Commercial Civil Suit E336 of 2020) [2021] KEHC 15 (KLR) (Commercial and Tax) (14 September 2021) (Ruling)

Case Metadata

Case Number:

Commercial Civil Suit E336 of 2020

Parties:

Mumbu Holdings Ltd v Spire Bank Ltd & 5 others

Date Delivered:

14 Sep 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Case Action:

Ruling

Judge(s):

John Muting'a Mativo

Citation:

Mumbu Holdings Ltd v Spire Bank Ltd & 5 others (Commercial Civil Suit E336 of 2020) [2021] KEHC 15 (KLR) (Commercial and Tax) (14 September 2021) (Ruling)

Court Division:

Commercial and Tax

County:

Nairobi

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

Mumbu Holdings Ltd v Spire Bank Ltd & 5 others (Commercial Civil Suit E336 of 2020) [2021] KEHC 15 (KLR) (Commercial and Tax) (14 September 2021) (Ruling)

Neutral citation:

[2021] KEHC 15 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Commercial Civil Suit E336 of 2020

JM Mativo, J

September 14, 2021

Between

Mumbu Holdings Ltd

Plaintiff

and

Spire Bank Ltd

1

st

Defendant

Mbukabu Ltd

2

nd

Defendant

Geoffrey Wekesa Advocate

3

rd

Defendant

Kimani & Michuki Advocate

4

th

Defendant

Ministry of Lands

5

th

Defendant

Attorney General

6

th

Defendant

Ruling

1.

This ruling determines two applications all dated 20

th

May 2021, namely, the Plaintiff’s and the 1

st

defendant’s applications of even dates. In order to put the two applications into a proper perspective, a brief account of the Plaintiff’s case as enumerated in its Plaint dated 12

th

August 2020 and also a brief history of this litigation is necessary. In a ruling dated 26

th

February 2021 dismissing the Plaintiffs application for injunction to inter alia restrain the 1

st

defendant from exercising its Statutory power of Sale, this court gave a generous account of the Plaintiff’s averments as disclosed in its Plaint. Instead of replicating the account as captured in the said ruling, it will suffice to state that Plaintiff acquired LR. Nos. 715/312 (IR 1555347), 12948/134, 12948/137, 209/8336/66 all situated at Spring Valley, Nairobi and on 27

th

July 2016, the 2

nd

defendant, 2 days after its incorporation applied for a loan of Kshs. 90,000,000/= from the 1

st

defendant to purchase LR. No. 209/2054 along Muthithi Road, Westlands, Nairobi. It claims that the 1

st

defendant ought to have known that the 2

nd

defendant had no capacity to borrow the said sum within 2 days of its incorporation.

2.

It also avers that Article 16 of the 2

nd

defendants Memorandum and Articles of Association, the Plaintiff could not borrow money for any other entity, and that the 1

st

defendant without carrying out any due diligence granted the 2

nd

defendant credit facilities of Kshs.90,000.000/= to finance the purchase of the property subject to a raft of terms and conditions including requiring the 3

rd

defendant to deposit Kshs 50,000,000/= to be held by the 1

st

defendant in a margin account prior to drawdown. Additionally, it avers that on the 15

th

of December 2016, the 3

rd

defendant, Mr. Geoffrey Wekesa, the Advocate for the 4

th

defendant wrote to the 1

st

defendant confirming that the sum of Kshs 60,000,000/= had been paid by the 2

nd

defendant to the vendor without providing of the said payment and the 1

st

defendant accepted the same in absence of proof.

3.

The Plaintiff maintains that the advocates omission constitutes conflict of interest which rendered them incapable of independently offering legal advice to the parties and as a result, they exposed the Plaintiff’s property to danger. The Plaintiff avers that it has suffered and continues to suffer loss and damage. Further, the Plaintiff states that the 1

st

defendant did not adhere to its own terms and conditions before draw down, specifically condition number 12 of the Letter of Offer and it instead released Kshs 90,000,000/= without conducting due diligence expected of a reasonable bank suggesting fraud. Also, a search at the Lands Office done on 30

th

day of July 2020 revealed that the property was none-existent, that LR No. 209/2054 is registered in the name of Esquire Investments Ltd, and IR No. 176236 in the name of Francis Munene Hiram. The Plaintiff avers that the foregoing could not have been possible without the 1

st

,2

nd

, 3

rd

and 4

th

defendant’s either jointly and/or severally acting in collaboration with 5

th

defendant. The Plaintiff avers that the 1

st

defendant on the 18

th

day of August 2020 served it with a 90-day Statutory Notice threatening to exercise its Statutory Power of Sale recover the sum of Kshs 46,801,181.70 on account of the loan. The Plaintiff states that by the acts and or omissions complained of herein above, its property is at the risk of being auctioned. As a consequence of the foregoing, the plaintiff prays for judgement against the defendants jointly and severally for: -

a)

A permanent injunction restraining the 1

st

defendant by itself, agents and/ or servants from advertising or selling by public auction the suit property.

b)

A permanent injunction restraining the 1

st

defendant by itself agents and /or servants from proceeding in any way with the exercise of its statutory powers of sale.

c)

A declaration that the Charge document herein is so tainted with illegality and fraud and as such rendering the same null and void.

d)

An order directing 1

st

defendant to discharge forthwith the charge registered by the 1

st

defendant against the suit property.

e)

That in the event that the 1

st

defendant fails to do so, the Deputy Registrar of this Court to execute a discharge of the aforesaid charge.

f)

General damages.

g)

Costs and interests of the suit.

h)

Any other relief as will be deemed fit and just by this Honourable Court.

4.

Contemporaneous with the plaint, the Plaintiff filed an application seeking an injunction to restrain the 1

st

defendant by itself agents and/or servants from serving it with any redemptive notice(s) or from instructing any Auctioneer or advertising or in any way proceeding with the sale by public auction or by private treaty or in any way proceeding with the 1

st

defendant’s statutory Powers against the said property pending the hearing and determination of this suit. Additionally, it prays for costs of the application to be provided for and any other expedient orders the court may grant in the interest of substantial justice and fairness. The application was premised on the grounds that the transaction upon which the charge herein is founded was tainted with illegality and fraud, hence it cannot form the basis upon which the 1

st

defendant can exercise its Statutory Power of Sale. The Plaintiff alleged a raft of illegalities as enumerated on the face of the said application.

5.

Vide the ruling dated 26

th

February 2021, this court dismissed the said application for lack of merits. Aggrieved by the ruling, the Plaintiff filed a Notice of Appeal dated 26

th

February 2021 signifying intention to appeal to the Court of Appeal.

The Plaintiff’s application

6.

In its application, the Plaintiff prays for an order that Pending the hearing and determination of its application by the Court of Appeal, this court restrains the 1

st

defendant or its agents from advertising, putting up for sale, selling, charging, transferring, alienating, trespassing onto and or in any other way interfering with LR. No. 7158/312. It also prays for an order that pending the hearing and determination of the review application in the Court of Appeal, this court issues orders maintaining the status quo relating to the ownership of the said property. Lastly, it prays that this court issue any orders it deems just in the circumstances. Prayers (a), (b) & (c) of the application are spent.

7.

In support of the application, the Plaintiff states that it owns the said property. It states that its application was dismissed because the 1

st

{{^}}Respondent was deemed capable of settling any damage that the Plaintiff might suffer, but it is public knowledge that the 1

st

defendant is going through financial losses which was not disclosed to the court. It states that the Court of Appeal dismissed its application on the same grounds, but it has applied for review. It states that the 1

st

{{^}}defendant has moved to advertise the property for sale by auction because it has realized that the application for review reveals its financial status and its apprehensive that the 1

st

{{^}}defendant will sell the property before its review application in the Court of Appeal is determined. Lastly, that the suit property has tenants whose tenancy is now in limbo because of the impending auction.

The 1

st

defendant’s Reply

8.

The 1

st

defendant filed the Replying affidavit of John Wageche, the its Senior Legal Officer. The nub of its opposition to the application is that the Plaintiff’s application is res judicata, that the Plaintiff filed a Notice of Appeal and an application in the Court of Appeal which was dismissed for want of merit; that the Plaintiff's Advocates approached the 1

st

defendant for negotiations and the Plaintiff

paid Kshs. 2,000,000/= towards the debt, but, upon halting of the auction the Plaintiff' ignored the negotiations prompting the 1

st

defendant to schedule another auction on the 25

th

May 2021 but it did not attract bids because the prospective purchasers were unable to view the property.

9.

The 1

st

defendant states that the application is bad in law, frivolous and vexatious because the court declined similar orders; and that the Plaintiff should have filed an application for review;

that the 1

st

defendant is not aware of the review application before the Court of Appeal; and that the allegations concerning the Plaintiff’s financial distress are in bad faith.

Further, that the Plaintiff has not met the conditions of granting an injunction nor can an injunction be granted when a debt is owing. Lastly, the Plaintiff has not come to court with clean hands.

The 1

st

defendant’s application

10.

In its application, the 1

st

defendant prays that this court grants an order allowing prospective buyers to access LR. No. 7158/312 (I.R 55347) Spring Valley, Nairobi for viewing and inspection, and that the OCS Spring Valley Police Station be directed to

enforce compliance with the said orders. It also prays for the court to grant such further and/or other relief as the court may deem fit and expedient. Lastly, it prays for costs of the application to be in the cause.

The application is founded on the grounds that the 1

st

defendant’s statutory power of sale has crystalized, but the Plaintiff is sabotaging it’s exercise by preventing intended purchasers from inspecting the property. Lastly, the applicant states that it is in the interests of justice and fairness that prospective purchasers are afforded an opportunity to view the

property before the auction so as to attract the highest bids.

11.

The applicant’s grounds are explicated in the supporting affidavit ofJohn Wageche. He avers that after the Plaintiff’s application for injunction was dismissed, the Plaintiff filed Civil Appeal No. E068 of 2021 in the Court of Appeal under

Rule 5(2)(b) of the Court of Appeal rules

seeking stay pending appeal but the same was dismissed.

12.

He deposed that the 1

st

defendant proceeded to exercise its Statutory Power of Sale and a public auction was scheduled for 16

th

March 2021 but vide an e-mail dated 16

th

March 2021 from the Plaintiff's Advocates proposed to liquidate the debt by paying in instalments of Kshs. 5 million every month and Kshs. 2 million to be paid on 17

th

March 2021. Additionally, he deposed that the 1

st

defendant considered and accepted the proposal and by consent agreed stop the auction, and the Plaintiff paid Kshs. 2,000,000/= on 31

st

March 2021 but it failed to record a consent and or make further payments prompting the 1

st

defendant to advertise the property for sale and the auction was scheduled for 25

th

March 2021 (now past) but the Plaintiff frustrated the sell by refusing to facilitate viewing of the property by prospective buyers. He averred that under the Charge instrument the Plaintiff is obligated to give access to the 1

st

defendant to inspect the suit property.

The Plaintiff’s grounds of opposition

13.

The Plaintiff filed grounds of opposition stating that the auction date has lapsed thus the orders sought are superfluous; that pursuing the application is an abuse of court process, vexatious and bad in law. It states that accessing the property will require consideration of the constitutional rights of the tenants residing in the premises.

Lastly, that the application violates

Constitution of Kenya

and sections 90, 91,92,93 and 94 of the

Land Act

.

The Plaintiff’s Replying affidavit

14.

In addition to the above grounds, the Plaintiff filed the Replying affidavit of Peter Mucheri, its general Manager dated 5

th

June 2021. He deposed that the Plaintiff has never authorized the property to secure the loan; that the statutory notice was issued as a ploy to hoodwink it to pay the alleged loan; that there is a suit challenging the fraudulent dealings relating to the said loan, hence the sale ought to be halted; that the property houses several tenants whose rights will be violated by the intended visits. Lastly, he averred that the 1

st

defendant will not suffer any prejudice if this court dismisses the application.

The 2

nd

defendant

15.

The 2

nd

defendant’s counsel stated that he did not file any reply to the 2 applications nor did he file submissions.

The Plaintiff’s submissions

16.

The Plaintiff submitted that it has a pending application for review before the Court of Appeal and that its application meets the tests set out in

Giella v Cassman brown & Co. Ltd.

1

It submitted that a prima facie case can be established where a contract relating to land is in writing and has been executed by both parties and attested and cited

Valeria Tanzi v Giulio Giro & 2 others

.

2

It argued that the contract dated the 30

th

day of June 2016 pursuant to which the loan was disbursed and the charge registered does not have the representative of the vendor who purportedly executed it though it is attested to by the 3

rd

Respondent. The Plaintiff submitted that there were no documents guaranteeing the loan agreement and that the only documents available is a sale agreement made a month before the formation of the 2

nd

{{^}}defendant which was never executed properly by the vendor but it was attested to by the 3

rd

defendant as instructed by the 4

th

{{^}}defendant. Additionally, it argued that the consent of the registered proprietor was not attached to the contract (citing

Gabriel Mbui v Mukindia Maranya

3

).

1

Civil Appeal 53 of 1972.

2

{2014} e KLR.

3

{1993} e KLR.

17.

The Plaintiff argued that the loan amount is quantifiable, that the value of the suit property is over three times the loan amount, that the subject property is a residential premises with many tenants, and that the right to own property under the Constitution transcends all other rights and a party that owns property can only be disinherited of such property where all avenues to recoup the loan amount have failed or are unavailable. (Citing Article 40 of the Constitution and sections 90(1), 91, 92,93,94 and 95 of the

Land Act

). It submitted that selling the charged property is the most offensive remedy to the constitutional right of any chargor and is only exercised where the remedies contemplated under 91(3) (a-d) of the

Land Act

have been exhausted.

18.

On balance of convenience, the Plaintiffs’ counsel submitted that the suit property is a commercial property inhabited by tenants who have long term leases which under Article 40 of the Constitution that the 1

st

{{^}}defendant would have to compensate. Regarding costs, counsel cited section 27 of the

Civil Procedure Act

and

Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 Others

4

and argued that the costs of both applications should be awarded to the Plaintiff.

4

{2014} e KLR.

The 1

st

defendant’s submissions

19.

The 1

st

defendant submitted that it is not disputed that its Statutory Power of sale has crystallized, that, the sale was to proceed on the 16

th

{{^}}of March 2021, but the Plaintiff's advocate approached the Bank and requested the auction be suspended offering settlement proposals and the Plaintiff paid Kshs. 2,000,000/= only to renegade thereafter prompting the 1

st

defendant to schedule another auction on the 25

th

May 2021 which was not successful because prospective purchasers were not willing to purchase a property they had viewed. It argued that the Plaintiff has frustrated efforts by prospective

buyers to view the property. It argued that it is an implied condition in the charge instrument that the Plaintiff is

obligated to grant the 1

st

defendant access of the premises, and, that, the Plaintiff’s refusal to grant access is just a ploy to frustrate the 1

st

defendant’s exercise of its Statutory Power of Sale.

20.

Regarding the argument that granting access would impinge the constitutional rights of the tenants in the premises, the 1

st

defendant argued that the Tenant's Rights can never supersede the rights of the Chargee and relied on

Paul Gatete Wangai v Capital

Realty Ltd & Another

5

which held that the bank being the holder of the charge has first priority over the property. It argued that the Plaintiff has not met the conditions to warrant an injunction and that the application is res judicata citing Section 7 of the

Civil Procedure Act

and

The Independent

Electoral and Boundaries Commission v Maina Kiai & 5 others

.

6

The 1

st

defendant submitted that

the Plaintiff has attempted to tweak the facts in order to evade the doctrine of res judicata citing

E.T. v Attorney General & another

7

which held that courts must be vigilant to guard against litigants evading the doctrine of

res judicata

by introducing new causes of action so as to seek the same remedy before the court.

5

{2020} e KLR.

6

Nairobi CA Civil Appeal No. 105 of 2017 {2017} e KLR.

7

{2012} e KLR

Determination

21.

A pertinent question which warrants early resolution is whether the instant application offends the doctrine of res judicata defined in the Black’s law Dictionary as: -

“

An issue that has been definitely settled by judicial decision; An affirmative defense barring the same parties from litigating a second law suit on the same claim, or any other claim arising from the same transaction or series of transaction and that could have been but was not raised in the first suit. 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.”

22.

The court in

James Karanja alias James Kioi (Deceased

8

cited J

James Karanja alias James Kioi (Deceased

)

9

outlined the ingredients of res judicata as: -

8

{2020} e KLR.

9

{2014} e KLR.

“

For the doctrine of

Res Judicata

to apply, three basic conditions must be satisfied. The party relying on it must show: - (a)That there was a former suit or proceeding in which the same parties as in the subsequent suit litigated;(b) the matter in issue in the latter suit must have been directly and substantially in issue in the former suit; (c)that a court competent to try it had heard and finally decided the matters in controversy between the parties.”

23.

The Supreme Court in

Kenya Commercial Bank Limited v Muiri Cofee Estate Limited & another

stated the following regarding res judicata: -

“

(52)

Res judicata

is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights.

(54)

The doctrine of

res judicata,

in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to Court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.

(58)

Hence, whenever the question of res judicata is raised, a Court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The Court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a Court of competent jurisdiction

(59)

That Courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle was judicially remarked in

E.T v. Attorney-General & Another,

(2012) eKLR, thus: “The Courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the Court. The test is whether the plaintiff in the second suit is trying to bring before the Court in another way and in a form of a new cause of action which has been resolved by a Court of competent jurisdiction.”

24.

A reading of the above decisions shows that if any judicial tribunal in the exercise of its jurisdiction delivers a judgment or a ruling which is in its nature final and conclusive, the judgment or ruling is res judicata. It follows that if in any subsequent proceedings (unless they be of an appellate nature or review) in the same or any other judicial tribunal, any fact or right which was determined by the earlier judgment or ruling is called in question, the defence of res judicata can be raised. This means in effect that the judgment or ruling can be pleaded by way of estoppel in the subsequent case.

25.

Undisputedly, the most articulate elucidation of

res judicata

is to be found in the words of Somervell L.J.

10

who stated that

res judicata

covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them. It is basic law that a litigant will not be allowed to litigate a matter all over again once a final determination has been made. Generally, a party will be estopped from raising issues that have been finally determined in previous litigation, even if the cause of action and relief are different. The purpose is obviously to prevent the repetition of lawsuits between the same parties, the harassment of a defendant by a multiplicity of actions and the possibility of conflicting decisions by the different courts on the same issue.

11

The requirements for

res judicata

are that the same cause of action, the same relief involving the same parties was determined by a court previously. In assessing whether the matter raises the same cause of action, the question is whether the previous judgment involved the ‘determination of questions that are necessary for the determination of the present case and substantially determine the outcome of the case.

10

In

Greenhalgh vs Mallard

(1) (1947) 2 All ER 257.

11

Caeserstone Sdot-Yam Ltd vs World of Marble and Granite 2000 CC and others

2013 (6) SA 499 (SCA) paras 20-21.

26.

Res Judicata

is one of the factors limiting the jurisdiction of a court. This doctrine requires that there should be an end to litigation or conclusiveness of judgment where a court has decided and issued judgment then parties should not be allowed to litigate over the same issues again. This doctrine requires that one suit one decision is enough and there should not be many decisions in regard of the same suit. It is based on the need to give finality to judicial decisions.

Res Judicata

can apply in both a question of fact and a question of law. Where the court has decided based on facts it is final and should not be opened by the same parties in subsequent litigation.

12

12

http://www.kenyalawresourcecenter.org/2011/07/res-judicata.html -Accessed on 16 December 2017.

27.

A judicial decision made by a court of competent jurisdiction holds as correct and final in a civilized society. Res judicata halts the jurisdiction of the court. That is why it is one of the factors affecting jurisdiction of the court. The effect of this is that the court is prevented from trying the case in limine i.e. from the beginning.

13

The rule of

res judicata

presumes conclusively the truth of the decision in the former suit.

14

Res judicata, also known in the US as claim preclusion, is a Latin term meaning "a matter judged." This doctrine prevents a party from re-litigating any claim or defence already litigated. The doctrine is meant to ensure the finality of judgments and conserve judicial resources by protecting litigants from multiple litigation involving the same claims or issues.

13

Ibid.

14

Ibid.

28.

Res judicata

is provided for in Section 7 of the

Civil Procedure Act

.

15

Its object is to bar multiplicity of suits and guarantee finality to litigation. It makes conclusive a final judgement between the same parties or their privies on the same issue by a court of competent jurisdiction in the subject matter of the suit. The scheme of Section 7 contemplates five conditions which, when co-existent, will bar a subsequent suit. The conditions are:- (i) the matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit; (ii) the former suit must have been between the same parties or privies claiming under them; (iii) the parties must have litigated under the same title in the former suit; (iv) the court which decided the former suit must have been competent to try the subsequent suit; and (v) the matter in issue must have been heard and finally decided in the former suit.

16

In

Gurbachan Singh Kalsi v Yowani Ekori

,

17

the former East African Court of Appeal stated: -

15

Cap 21, Laws of Kenya.

16

See

Lotta v Tanaki

{2003} 2 EA 556

.

17

Civil Appeal No. 62 of 1958.

“

Where a given matter becomes the subject of litigation in, and of 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 a 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 judgement, 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…No more actions than one can be brought for the same cause of action and the principle is that where there is but one cause of action, damages must be assessed once and for all…A cause of action is every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgement of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.”

29.

The Plaintiff’s application for an injunction to stop the 1

st

defendant from exercising its statutory power of sale was dismissed by this court on 26

th

February 2021. Also, the Plaintiff’s application for stay in the Court of Appeal was dismissed. The Plaintiff claims that it has applied to the Court of Appeal to review its ruling alleging that the 1

st

defendant is undergoing liquidity problems. (The same issue has been cited in this case, even though before me is not an application for review, and even if it was, the said ground woulb be a non-starter). The Plintiff claims that the said issue was not brought to the attention of this court and the Court of Appeal. It claims that the said reason is a sound ground for this court to stay stop the 1

st

defendant from exercising its Statutory Power of Sale pending hearing of its application in the Court of Appeal.

30.

The above argument collapses not on one but on several fronts. First, its basic law that introducing new parties or a new ground or a new prayer(s) as has happened in this application does not necessarily render the doctrine of res judicata inapplicable because a party cannot escape the wrath or res judicata by simply undertaking a cosmetic surgery to his pleadings or introducing new grounds to secure the earlier refused orders. Second, if the added parties or prayers peg the claim under the same title as the parties in the earlier suit, or if the added grounds or prayer(s) still stands on the same grounds cited and determined earlier simply to re-litigate the same issues, the doctrine will still be invoked because citing a new ground or adding a new prayer would in that case be for the sole purpose of decoration and dressing and nothing else.

18

This is because

Res judicata

covers issues which could have been raised in the earlier proceedings. The test here as I see it is whether if the earlier application had succeeded, the Plaintiff would have filed the instant application. Looking at the prayers sought in the instant application and the earlier application, the answer is that had the earlier application succeeded, the Plaintiff would not have filed the instant application because it would add no value. The Plaintiff’s application offends the doctrine of res judicata.

18

Republic v Registrar of Societies - Kenya & 2 Others Ex-Parte Moses Kirima & 2 others

[2017] eKLR.

31.

Third, the Plaintiffs application for stay was dismissed by the Court of Appeal. The instant application is a disguise to secure an order which the Plaintiff could not obtain from the Court of Appeal. Put differently, the Plaintiff is mischievously inviting this court to overturn the decision of the Court of Appeal. Fourth, having escalated the dispute to the Court of Appeal, the Plaintiff is now aggrieved by a decision of the Court of Appeal and it claims that it has applied for review before the said court. The matter is now not within this court’s jurisdiction. The Plaintiff cannot come back to this court for any orders because it challenges the decision of a higher court. The concept of stay pending appeal or review only applies where the orders being appealed or reviewed emanated from the court whose orders are being appealed or reviewed. To my mind, the Plaintiff cannot approach this court for stay as it seeks to overturn the decision of the Court of Appeal either by way of appeal or review. The Plaintiff has misconstrued the law on stay pending appeal or review and is inviting this court to create dangerous precedent whereby parties aggrieved by decisions of higher courts approach a lower court for stay as they appeal or review a decision of the higher court. Again, on this ground, the Plaintiff’s application collapses.

32.

Complementary to the doctrine of

res Judicata

is the conception that, when a judicial tribunal becomes functus officio in respect of a particular case, its powers and jurisdiction are exhausted in respect of that issue. A judicial tribunal, after giving a decision as to the merits of a case, ceases to exist as an instrumentality in its previous form or at all, or is deprived of all the judicial functions it previously possessed, it is functus officio in respect of the issues decided. (See

Nyandoro & Company Advocates v National Water Conservation & Pipeline Corporation and Kenya Commercial Bank Group Limited (Garnishee

19

).

19

Miscellaneous Civil Application No. 241 of 2019.

33.

A court which, after a trial, has given a valid decision determinative of right, liability or status, has no jurisdiction to recall it whatever mistakes may have been made in facts or law.

20

This test is applicable only if there happens to have been a "final" and "determinative" decision, after a trial; and that a judicial tribunal becomes functus officio in this sense only in relation to a particular matter, not in respect of all matters. For a judicial tribunal to become

functus officio,

it must have delivered a valid judgment, decree or order of a final and conclusive nature and res judicata must have come into existence. The court pronounced itself on the first application. This court is being invited to sit on appeal on the same decision. I decline the invitation to travel along this forbidden route. The Plaintiff’s application having failed on the above grounds, it will serve no purpose to address it on merit. However, for avoidance of doubt, notwithstanding my above findings, it is also my finding that the application lacks merit, its bad in law, in fact and in substance and a clear abuse of court process.

20

(1943-4) 68 C.L.R. at p. 590.

34.

I now turn to the Plaintiff’s application seeking an order that prospective buyers be granted access to view the premises. I have considered the grounds in support of the application and also the grounds in opposition to the application. The parties having covenanted and bound themselves to the terms and conditions of the charge instrument, and the 1

st

defendant’s Statutory Power of Sale having arisen, I find no bar either legal or equitable to stand on the way of the 1

st

defendants’ application. The Plaintiff is obligated to grant the 1

st

defendant, it’s authorized agents or servants and prospective buyers unhindered access to the premises. Accordingly, I issue the following orders: -

a.

That the Plaintiff’s application dated 20

th

May 2021 be and id hereby dismissed.

b.

That the 1

st

defendant’s application dated 20

th

May 2021 is allowed.

c.

That the Plaintiff be and is hereby ordered to grant the 1

st

defendant, its agents or servant’s and prospective buyers unrestricted access to the premises erected on L.R. No. 7158/312 (I.R 55347) Spring Valley, Nairobi for purposes of viewing and inspection during reasonable hours.

d.

That an order be and is hereby issued directing the Officer Commanding Station, Spring Valley Police Station to

enforce, implement and/or otherwise oversee compliance with the said orders.

e.

That each part shall bear its own costs.

Orders accordingly. Right of appeal

Dated, signed and delivered at Nairobi via e-mail this

14

th

of

September

2021

John M. Mativo

Judge