1. I have considered the grounds on the face of the Notice of Motion Application dated 4th July, 2023; together with the supporting affidavit sworn on even date; the replying affidavit sworn in opposition to the same on 14th August, 2023; together with the rival written submissions; and the applicable law.
2. The Application seeks to strike out prayers (b) and (c) of the Amended Plaint dated 10th August, 2021, on the basis that the same prayers have been determined by the Court of Appeal in a judgment dated 5th July, 2019. In addition, the Applicant seeks to strike out its name from the suit.
3. The Applicant submitted that the background to the suit was based on a facility issued by the Defendant to the Plaintiff. The Plaintiff fell into arrears and accordingly, the Defendant proceeded to sell by way of public auction the property belonging to the Plaintiff, to the Applicant.
4. On or around 21st December, 2016, the Plaintiff obtained injunctive orders from the High Court stopping the auction that had already occurred. Thereafter, the said orders were the subject of an appeal in Civil Appeal No. 109 of 2017 (consolidated with Civil Appeal No. 156 of 2015).
5. The Applicant’s position was that the above court delivered a judgment on 5th July, 2019, allowing the appeal, and setting aside the injunctive orders. In the said decision, the court stated that the Plaintiff may be compensated only by way of damages.
6. However, thereafter, unsatisfied with the ruling of the court, as stated above, the Plaintiffs appealed the decision to the Supreme Court, which appeal was dismissed by way of a ruling delivered on 22nd May, 2020. Still unsatisfied, the Plaintiffs proceeded to amend the plaint and included the two prayers which are the subject matter of the present application.
7. The particular prayers that the Applicant seeks to have struck out from the amended plaint are prayers (b) and (c). These prayers read as follows:-
b) The force sale by public auction undertaken on 9th December 2014 be declared illegal, unlawful, null and void ab initio and c) Entries made on land register L.R No. 14902/79(L.R No. 89871) pursuant to auction of 9th December 2014 be declared null and void and be struck out.
8. The said prayers seek to challenge the transfer of L.R No. 14902/79(L.R No. 89871) that was carried out by the Defendant’s bank to the Interested Party pursuant to the public auction held on 9th December, 2014.
9. Having read the prayers, I turn to the decision of the Court of Appeal found at Annexure VK1 of the Applicant’s supporting affidavit. The relevant part reads as follows:-
“on our part, we are persuaded by the merits of the decision in Bomett beer Distributors Limited & another v Kenya Commercial Bank Limited & 4 others (supra) [2005] which is in tandem with the appellant’s claim in this matter. Taking into account the provisions of section 99 (4) of the Act, and considering the judge issued injunctive orders one and half years after the sale by public auction, we find that the judge erred in law in failing to give effect and apply section 99 (3 )and (4 ) of the Land Act to the dispute in this matter. We are satisfied that any grievance the 1st and 2nd Respondents have against the 3rd Respondent Bank can adequately be compensated by way of damages as stipulated in section 99 (4) of the Land Act.”
10. Looking at the above, it is evident to me that the Court of Appeal determined the issues in the said prayers, (b) and (c). The court went on to state that the Plaintiffs’ remedy is available under section 99(4) of the Land Act, in so far as, a person prejudiced by an unauthorized, improper or irregular exercise of the power of sale, shall have a remedy in damages against the person exercising that power. Further to the above, the court also expressly noted that a chargor’s equity of redemption had expired at the fall of the hammer.
11. The Supreme Court in the case of Kenya Hotel Properties Limited-vs.-Attorney General & five others (petition 16 of 2020) [2022] KESC 62 (KLR) (Civ) (7 October 2022) held that:-
“...as was thus rightly noted by the High Court and the Court of Appeal, the rule of thumb is that superior courts cannot grant orders to reopen or review decisions of their peers of equal and competent jurisdiction much less those court higher than themselves... The appellant, having exercised his right of appeal (albeit unsuccessfully) to a higher court, in this case, the Court of Appeal, cannot proceed to launch an attack upon a judgment of the Court of Appeal, by making an application for redress under article 23 of the Constitution to the High Court, another superior court nonetheless, but one inferior to the court that delivered such judgment. To allow such an action, would in the view of this court be quite subversive to the principle of rule of law as enshrined in our Constitution...”(emphasis mine)
12. Based on the above, I am satisfied that the prayers sought before this Court have already been determined by the Court of Appeal, and accordingly, the same are an abuse of court process.
13. I am not persuaded by the Respondent’s argument that the above decision arises from an interlocutory decision of the High Court, rather than from a substantive basis, and therefore could not apply. The authority put forward by the Respondent in its written submission does not adequately explain this point, and I do not see the difference.
14. I am of the view that the judgment of the Court of Appeal concerned the same subject matter, and related to the same parties that are before this court. The issues it determined, by way again, of judgment, are the very same issues before this court.
15. To my mind, once an issue has been determined by a higher court, and the same issues are raised in a lower court, it is trite that the lower court is bound by the decision of the higher court, and the lower court, in this case the present court, may not revisit those issues.
16. Based on the above, I am persuaded that the prayers (b) and (c), which both seek to void the sale and cancel the entries in the register, with a view to returning the property to the Plaintiff, have been determined.
17. In the said judgment, the court stated expressly at paragraph 33 of its decision:-
“it was correctly stated that the chargor’s equity of redemption expires at the fall of the hammer”.
18. The prayers found at (b) and (c) are therefore clearly seeking a remedy that has been barred by the appellate court, and which are now res judicata.
19. In light of the above, I am of the view that the crux of the dispute is an issue concerning damages arising out of the actions between the Bank and the Applicant. More so, given my finding that the said prayers in the amended plaint ought to be struck out. As such, I am persuaded that the Interested Party no longer has an identifiable stake in the dispute, and it need not remain as a party. I am therefore satisfied that the Applicant ought to be struck out as a party to the suit.
20. As regards the costs, I am persuaded that the inclusion of the prayers in the Amended Plaint necessitated the joinder of the Interested Party to the proceedings for the purpose of protecting its rights. I am therefore of the view that it ought to be awarded costs in the present application despite the fact that it voluntarily joined the proceedings.
21. Based on the reasons set out above, I find that the application is with merit and the same is allowed as prayed for.
Dated and delivered virtually via Microsoft Teams this day 7th of October 2024