1. Vide an application dated 28th February 2025, the plaintiff/applicants sought an order of injunction to prevent the sale of Title No Mombasa/Block XVII/797. The said application was opposed. Upon hearing the parties, this Court found that the Plaintiffs/applicants had not presented a prima facie case. The Court dismissed the application dated 28th February 2025 with costs to the 1st defendant/respondent.
2. The plaintiffs/applicants aver that they were dissatisfied with this Court’s decision and that they filed a notice of appeal. However, before they could prosecute the appeal, they were approached by the 1st defendant/respondent with a proposal to resolve the matter out of Court. The parties, it is alleged, agreed that the appeal would be withdrawn, and the respondent would stay the recovery process. Despite the agreement, the 1st defendant/respondent purported to advertise the security, known as Title No. Mombasa/Block XVII/797, for sale by public auction on 26th June 2025 at 11:00 a.m.
3. The said action forced the plaintiffs/applicants to seek the following orders:-
1. Spent;
2. Spent:
3. Spent;
4. THAT this Honourable court be pleased to issue an order of injunction against the Defendants herein, their servants, agents and./or employees/ from trespassing, building, constructing, dealing, leasing, selling, wasting, damaging, intruding, developing and/or in any way interfering with all that property known as Title No Mombasa/Block XVII/797 pending the hearing and determination of the intended appeal;
5. That this Honourable court be pleased to issue an order of injunction against the Defendants herein, their servants, agents and/or employees, from trespassing, building, constructing, dealing, leasing, selling, wasting, damaging, intruding, developing and/or in any way interfering with all that property known as Title No Mombasa/Block XVII/797, pending the hearing and determination of this suit; and
6. That the costs of the application be in the cause.
4. The application was supported by the attached affidavit of Abdulgader Shariff Saleh, sworn on 25th June 2025. The affidavit has several annexures that show the parties were indeed in negotiation and that the 2nd Plaintiff accepted indebtedness and sought time within which to make payment.
5. The application is opposed. Ms Caroline Kori deposed to an affidavit sworn on 4th July 2025 in which she averred that the Court delivered its ruling on 19th March 2025, dismissing the application dated 28th February 2025. The Court therefore lacks jurisdiction as the matter is res judicata. She urged that there were no new facts that could create a new factual situation and lead to a new cause of action. Ms Kori further deposed that the negotiations were conducted on a without prejudice basis and the documents relied upon were therefore inadmissible.
6. Ms Kori stated that the negotiations aforesaid did not deprive the applicant of his right of appeal and that Rule 84(1) of the Court of Appeal Rules, 2022 preserved the right of appeal.
7. The application was canvassed by way of written submissions. The parties submitted written briefs, which I will summarize below.
8. The submissions of the plaintiffs/applicants are dated 14th July 2025. The Plaintiffs/applicants identified issues for determination as being
1. Whether the Plaintiffs/applicants had met the threshold for the grant of an injunction;
2. Whether the Respondents had acted in bad faith.
9. On whether the prerequisites for the grant of an injunction had been met, it was submitted by the counsel for the plaintiffs/applicants that the test in Giella v Cassman Brown & Co. Ltd (1973) EA 358 had been met. They submitted that the amount outstanding was in dispute, as the claim made by the 1st defendant/respondent could not be justified.
10. It was stated that the loss to the applicant would not be compensated by an award of damages as the subject property was the matrimonial home of the plaintiffs/applicants. The balance of convenience tilted in favour of the grant of the injunctive relief sought.
11. Mr Odhiambo, learned counsel for the plaintiffs/applicants, contended that the defendants/respondents were acting in bad faith to defeat his client’s equity of redemption.
12. It was denied that the matter is res judicata. Counsel urged that new facts had given rise to a new cause of action, specifically the discussions between the parties and the agreement to suspend the auction. Counsel relied on the case of John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2024] KEHC 6648 (KLR) for the proposition that there were exceptions to the res judicata doctrine. Mr Odhiambo submitted that the provision of a truncated statement was a new ground warranting the filing of another application for injunction. He therefore urged the Court to grant the reliefs sought.
13. The submissions of the 1st respondent are dated 4th July 2025. Counsel for the 1st respondent urged that the application was bad in law and should be struck off. Since the Court had rendered its decision, the matter was res judicata. Reliance was placed on the case of Jampen Enterprises Limited v Nic Bank Kenya Plc & another [2020] KEHC 5515 (KLR).
14. Mr Kongere urged that the negotiation between the parties was made on a without prejudice basis and could not form the basis of a new application. Even if there were new grounds, Counsel stated, the same were at variance with the pleadings in the suit. Counsel relied on the case of Juja Coffee Exporters Ltd vs National Bank of Kenya Ltd [2019]KEHC 7700 (KLR). Further, it was urged that the refusal to accept the proposals of the Plaintiffs/applicants could not be a basis for the grant of an injunction. Reliance was placed on the decision of the Court in Seahawk General Logistics Ltd & 2 others vs Stanbic Bank of Kenya Ltd [2021] KEHC 7813 (KLR).
15. Mr Kongere urged that the application is a grave abuse of the process of the Court and prayed that the same be dismissed with costs.
16. Does the application have merit? What orders should the court issue? I have read the application and the response thereto and considered the written submissions of the parties. I will now proceed to consider the application and decide if it is merited.
17. It is conceded by the plaintiffs/applicants that this is a second application for an injunction. Is the application, therefore, res judicata?
18. The Supreme Court of Kenya, in the case of John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR), stated as follows regarding res judicata:-
“[58] This Court in the case of Kenya Commercial Bank Limited v. Muiri Coffee Estate Limited & another Motion No. 42 of 2014 [2016] eKLR (Muiri Coffee case) held as follows regarding the doctrine of 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. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights. Such a perception has a basis in comparative jurisprudence; in the Ugandan case of Hon. Norbert Mao v. Attorney-General, Constitutional Petition No. 9 of 2002; [2003] UGCC3, the petitioner brought an action on behalf of 21 persons from his constituency, for declarations under Article 137 of the Uganda Constitution, and for redress under Article 50 of that Constitution. The matter arose from an incident in which officers of the Uganda Peoples Defence Forces attacked a prison, and abducted 20 prisoners, killing one of them. Unknown to the petitioner, another action had already been filed under Article 50, seeking similar relief; and Judgment had been given in Hon. Ronald Reagan Okumu v. Attorney-General, Misc. Application No.0063 of 2002, High Court HCT 02 CV MA 063 of 2002. The Constitutional Court dismissed the petition, on a plea of res judicata, declining the petitioner’s pleas that certain important constitutional declarations now sought, had not been accommodated in the earlier Judgment.”
19. The said court went on to define the elements that must be present for the res judicata doctrine to apply. The Court stated that:-
“[59] For res judicata to be invoked in a civil matter, the following elements must be demonstrated:-
a) There is a former Judgment or order which was final;
b) The Judgment or order was on merit;
c) The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d) There must be between the first and the second action identical parties, subject matter and cause of action. (See Uhuru Highway Developers Limited v. Central Bank of Kenya & Others [1999] eKLR and See the decision of the Court of Appeal in Nicholas Njeru v. Attorney General & 8 Others Civil Appeal 110 of 2011 (2013) eKLR).”
20. As held by the Court of Appeal in Uhuru Highway Development Ltd vs CBK & 2 others; Civil Appeal No 36 of 1996, the doctrine applies to applications as much as it does to the suits. The said Court held that:-
“The long and short of all this is that once an application for injunction within a suit has been heard and determined under the principles as laid down in Giella vs. Cassman-Brown, a similar application cannot be brought unless there are new facts, not brought before court earlier after exercise of due diligence, which merit a re-hearing and possible departure form the previous ruling. Such cases, of course, must be very few and far between.”
21. I note that I dismissed the previous application. My understanding of the application before me is that it relies on the same grounds as those previously relied upon. The parties are the same, litigating under the same title. I rendered my decision in regard to the previous application, having heard both parties on the merits.
22. I agree with Mr. Kongere that even if there were new grounds, the same would be at variance with the prayers sought in the plaint. Parties are bound by their pleadings. I agree with what my brother, PJ Otieno, J stated in Juja Coffee Exporters Ltd vs NBK at paragraph 29, to wit that:-
“29. Does it matter that the plaintiff in the application and submission has attributed against the defendant, fraud, illegality and unreasonableness? I do not think so. Such do not matter nor count because parties are bound by their pleadings and not allowed to depart from the pleadings on record. In this case, the contract of lending having been acknowledged, it is not and cannot be open to the plaintiff to depart from what it has pleaded in the plaint. The law says it is not permitted. The situation is compounded negatively for the plaintiff in that there is no fraud alleged against the defendant and pleaded as required under the law.”
23. In my view, the negotiations between the parties cannot be the basis for this Court to impose its views on the parties. The documents adduced show that the discussions were conditional, and the bank reserved its right to reopen the auction process. In any event, the documents produced were on a without prejudice basis and are inadmissible save for a few exceptions.
24. Flowing from the foregoing, I find and hold that the matter is res judicata. Having done so, there can be no prima facie with probability of success.
25. In view of the foregoing, it is not necessary for me to consider whether any injury suffered by the plaintiffs/applicants can be compensated by an award of damages and where the balance of convenience lies.
26. I find and hold that the application is a grave abuse of the Court process. The plaintiffs/applicants are clearly misusing the Court to defeat the bank’s recovery action. In the circumstances, I dismiss the application dated 25th June 2025 with costs to the 1st defendant/respondent. For avoidance of doubt, the existing orders are discharged forthwith.
27. It is so ordered.
Dated and signed at Mombasa, this 13th day of August 2025. Delivered virtually through Microsoft TEAMS.
2. The plaintiffs/applicants aver that they were dissatisfied with this Court’s decision and that they filed a notice of appeal. However, before they could prosecute the appeal, they were approached by the 1st defendant/respondent with a proposal to resolve the matter out of Court. The parties, it is alleged, agreed that the appeal would be withdrawn, and the respondent would stay the recovery process. Despite the agreement, the 1st defendant/respondent purported to advertise the security, known as Title No. Mombasa/Block XVII/797, for sale by public auction on 26th June 2025 at 11:00 a.m.
3. The said action forced the plaintiffs/applicants to seek the following orders:-
1. Spent;
2. Spent:
3. Spent;
4. THAT this Honourable court be pleased to issue an order of injunction against the Defendants herein, their servants, agents and./or employees/ from trespassing, building, constructing, dealing, leasing, selling, wasting, damaging, intruding, developing and/or in any way interfering with all that property known as Title No Mombasa/Block XVII/797 pending the hearing and determination of the intended appeal;
5. That this Honourable court be pleased to issue an order of injunction against the Defendants herein, their servants, agents and/or employees, from trespassing, building, constructing, dealing, leasing, selling, wasting, damaging, intruding, developing and/or in any way interfering with all that property known as Title No Mombasa/Block XVII/797, pending the hearing and determination of this suit; and
6. That the costs of the application be in the cause.
4. The application was supported by the attached affidavit of Abdulgader Shariff Saleh, sworn on 25th June 2025. The affidavit has several annexures that show the parties were indeed in negotiation and that the 2nd Plaintiff accepted indebtedness and sought time within which to make payment.
5. The application is opposed. Ms Caroline Kori deposed to an affidavit sworn on 4th July 2025 in which she averred that the Court delivered its ruling on 19th March 2025, dismissing the application dated 28th February 2025. The Court therefore lacks jurisdiction as the matter is res judicata. She urged that there were no new facts that could create a new factual situation and lead to a new cause of action. Ms Kori further deposed that the negotiations were conducted on a without prejudice basis and the documents relied upon were therefore inadmissible.
6. Ms Kori stated that the negotiations aforesaid did not deprive the applicant of his right of appeal and that Rule 84(1) of the Court of Appeal Rules, 2022 preserved the right of appeal.
7. The application was canvassed by way of written submissions. The parties submitted written briefs, which I will summarize below.
8. The submissions of the plaintiffs/applicants are dated 14th July 2025. The Plaintiffs/applicants identified issues for determination as being
1. Whether the Plaintiffs/applicants had met the threshold for the grant of an injunction;
2. Whether the Respondents had acted in bad faith.
9. On whether the prerequisites for the grant of an injunction had been met, it was submitted by the counsel for the plaintiffs/applicants that the test in Giella v Cassman Brown & Co. Ltd (1973) EA 358 had been met. They submitted that the amount outstanding was in dispute, as the claim made by the 1st defendant/respondent could not be justified.
10. It was stated that the loss to the applicant would not be compensated by an award of damages as the subject property was the matrimonial home of the plaintiffs/applicants. The balance of convenience tilted in favour of the grant of the injunctive relief sought.
11. Mr Odhiambo, learned counsel for the plaintiffs/applicants, contended that the defendants/respondents were acting in bad faith to defeat his client’s equity of redemption.
12. It was denied that the matter is res judicata. Counsel urged that new facts had given rise to a new cause of action, specifically the discussions between the parties and the agreement to suspend the auction. Counsel relied on the case of John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2024] KEHC 6648 (KLR) for the proposition that there were exceptions to the res judicata doctrine. Mr Odhiambo submitted that the provision of a truncated statement was a new ground warranting the filing of another application for injunction. He therefore urged the Court to grant the reliefs sought.
13. The submissions of the 1st respondent are dated 4th July 2025. Counsel for the 1st respondent urged that the application was bad in law and should be struck off. Since the Court had rendered its decision, the matter was res judicata. Reliance was placed on the case of Jampen Enterprises Limited v Nic Bank Kenya Plc & another [2020] KEHC 5515 (KLR).
14. Mr Kongere urged that the negotiation between the parties was made on a without prejudice basis and could not form the basis of a new application. Even if there were new grounds, Counsel stated, the same were at variance with the pleadings in the suit. Counsel relied on the case of Juja Coffee Exporters Ltd vs National Bank of Kenya Ltd [2019]KEHC 7700 (KLR). Further, it was urged that the refusal to accept the proposals of the Plaintiffs/applicants could not be a basis for the grant of an injunction. Reliance was placed on the decision of the Court in Seahawk General Logistics Ltd & 2 others vs Stanbic Bank of Kenya Ltd [2021] KEHC 7813 (KLR).
15. Mr Kongere urged that the application is a grave abuse of the process of the Court and prayed that the same be dismissed with costs.
16. Does the application have merit? What orders should the court issue? I have read the application and the response thereto and considered the written submissions of the parties. I will now proceed to consider the application and decide if it is merited.
17. It is conceded by the plaintiffs/applicants that this is a second application for an injunction. Is the application, therefore, res judicata?
18. The Supreme Court of Kenya, in the case of John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR), stated as follows regarding res judicata:-
“[58] This Court in the case of Kenya Commercial Bank Limited v. Muiri Coffee Estate Limited & another Motion No. 42 of 2014 [2016] eKLR (Muiri Coffee case) held as follows regarding the doctrine of 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. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights. Such a perception has a basis in comparative jurisprudence; in the Ugandan case of Hon. Norbert Mao v. Attorney-General, Constitutional Petition No. 9 of 2002; [2003] UGCC3, the petitioner brought an action on behalf of 21 persons from his constituency, for declarations under Article 137 of the Uganda Constitution, and for redress under Article 50 of that Constitution. The matter arose from an incident in which officers of the Uganda Peoples Defence Forces attacked a prison, and abducted 20 prisoners, killing one of them. Unknown to the petitioner, another action had already been filed under Article 50, seeking similar relief; and Judgment had been given in Hon. Ronald Reagan Okumu v. Attorney-General, Misc. Application No.0063 of 2002, High Court HCT 02 CV MA 063 of 2002. The Constitutional Court dismissed the petition, on a plea of res judicata, declining the petitioner’s pleas that certain important constitutional declarations now sought, had not been accommodated in the earlier Judgment.”
19. The said court went on to define the elements that must be present for the res judicata doctrine to apply. The Court stated that:-
“[59] For res judicata to be invoked in a civil matter, the following elements must be demonstrated:-
a) There is a former Judgment or order which was final;
b) The Judgment or order was on merit;
c) The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d) There must be between the first and the second action identical parties, subject matter and cause of action. (See Uhuru Highway Developers Limited v. Central Bank of Kenya & Others [1999] eKLR and See the decision of the Court of Appeal in Nicholas Njeru v. Attorney General & 8 Others Civil Appeal 110 of 2011 (2013) eKLR).”
20. As held by the Court of Appeal in Uhuru Highway Development Ltd vs CBK & 2 others; Civil Appeal No 36 of 1996, the doctrine applies to applications as much as it does to the suits. The said Court held that:-
“The long and short of all this is that once an application for injunction within a suit has been heard and determined under the principles as laid down in Giella vs. Cassman-Brown, a similar application cannot be brought unless there are new facts, not brought before court earlier after exercise of due diligence, which merit a re-hearing and possible departure form the previous ruling. Such cases, of course, must be very few and far between.”
21. I note that I dismissed the previous application. My understanding of the application before me is that it relies on the same grounds as those previously relied upon. The parties are the same, litigating under the same title. I rendered my decision in regard to the previous application, having heard both parties on the merits.
22. I agree with Mr. Kongere that even if there were new grounds, the same would be at variance with the prayers sought in the plaint. Parties are bound by their pleadings. I agree with what my brother, PJ Otieno, J stated in Juja Coffee Exporters Ltd vs NBK at paragraph 29, to wit that:-
“29. Does it matter that the plaintiff in the application and submission has attributed against the defendant, fraud, illegality and unreasonableness? I do not think so. Such do not matter nor count because parties are bound by their pleadings and not allowed to depart from the pleadings on record. In this case, the contract of lending having been acknowledged, it is not and cannot be open to the plaintiff to depart from what it has pleaded in the plaint. The law says it is not permitted. The situation is compounded negatively for the plaintiff in that there is no fraud alleged against the defendant and pleaded as required under the law.”
23. In my view, the negotiations between the parties cannot be the basis for this Court to impose its views on the parties. The documents adduced show that the discussions were conditional, and the bank reserved its right to reopen the auction process. In any event, the documents produced were on a without prejudice basis and are inadmissible save for a few exceptions.
24. Flowing from the foregoing, I find and hold that the matter is res judicata. Having done so, there can be no prima facie with probability of success.
25. In view of the foregoing, it is not necessary for me to consider whether any injury suffered by the plaintiffs/applicants can be compensated by an award of damages and where the balance of convenience lies.
26. I find and hold that the application is a grave abuse of the Court process. The plaintiffs/applicants are clearly misusing the Court to defeat the bank’s recovery action. In the circumstances, I dismiss the application dated 25th June 2025 with costs to the 1st defendant/respondent. For avoidance of doubt, the existing orders are discharged forthwith.
27. It is so ordered.
Dated and signed at Mombasa, this 13th day of August 2025. Delivered virtually through Microsoft TEAMS.