COMPOSITE RULING
Background and Introduction
1. This Composite Ruling determines six separate applications, two filed in each matter. The three applications filed by the plaintiff (EQUIP) are all dated 16th October 2024. They seek injunctive relief against the defendants (the Bank) as well as a settlement of certain issues before trial. While the applications seek exactly the same prayers, they relate to different suit properties, more specifically;
a) LR. No. Mn/VI/3074 and LR No. 209/4535 in the case of 420/2016;
b) LR No. 209/8755 Pate Rd, Industrial Area Nairobi in the case of 355/2016 and
c) LR. No 214/172 Muthaiga, Nairobi in the case of 327/2016.
2. The Bank has responded to the said applications and equally filed other applications, dated 17th October 2024. It seeks to set aside the interim orders issued by this court on 17th October 2024 and to secure an injunction against EQUIP, from filing other applications that interfere with the Bank’s right to exercise its statutory power of sale. In each of the cases, the Bank has raised a preliminary point, arguing that the present applications are res judicata and should therefore be struck out. Since this is a jurisdictional issue, it must be determined as a priority.
Analysis and Determination
3. Upon considering the applications, responses, evidence and submissions from both parties, I note that this court has pronounced itself on the question of injunctive relief, no less than six times (6). I have examined various Rulings, including those delivered by Nzioka J on 7th May 2018 in 327/2016; on 5th February 2018 in 420/2016 and on 15th November 2017 in 355/2016. I have equally reviewed the decision by Majanja J delivered on 30th September 2022; Mwita J on 3rd June 2022 and Mulwa J on 19th September 2024.
4. Although these Rulings were delivered in different matters, they all address the injunction applications filed by EQUIP. In every instance, the request for injunctive relief has been denied as many times as it has been sought. Additionally, the issue of a breach of the in duplum rule under Section 44 of the Banking Act, specifically raised in this application, was previously addressed by this court in the Ruling delivered by Nzioka J on 7th May 2018.
5. The Learned Judge held at paragraph 87 that;
“A dispute to the interest charged cannot restrain a mortgagee from exercising its statutory power of sale or entitle an applicant to an order of injunction as the mortgagee is accountable to the mortgagor over funds realized”.
6. In light of the above, it is clear that the issues raised in the applications by EQUIP have already been conclusively determined by this court. The argument that there has been a change in circumstances since 2016 is unpersuasive. Notably, the most recent application was dismissed just one year ago, in 2024. Under the principle of res judicata, matters that have been settled by a competent court cannot be re-litigated (Section 7 Civil Procedure Act).
7. The second prayer in the applications is for settlement of issues. I take the view that the issues raised partly concerns matters that are in dispute between the parties, which this court finds should be resolved at trial. In any event, even if these issues were to be addressed, they are not contingent upon the grant of an injunction. The issue of statement of accounts is already spent as I note that the statements of accounts have been provided to EQUIP by the Bank.
8. During the hearing of the applications I asked the parties to address the court on the question of consolidation of the matters. I note that the various suits filed herein all arise from the facilities extended to EQUIP AGENCIES LIMITED by I & M BANK LIMITED. The facilities were secured by different charges which gave rise to each of the different suits.
9. The power to consolidate suits is a discretional power granted to this court. After careful consideration, I find that although each suit arises from a distinct charge, the underlying factual framework, which is the borrowing by a singular borrower of financial facilities from the same bank, creates substantial commonality. The overlapping issues in fact and law are sufficient basis for consolidating these actions to avoid duplicative litigation and the risk of inconsistent judgments. Moreover, consolidation will obviate the need for multiple separate applications, and streamline the proceedings, reducing the administrative burden on both the parties and the Court.
10. In the cause of submissions, the parties also referred to another additional matter, HCCOMM E943 of 2021. EQUIP confirms that at the center of that suit is the Deed of Settlement executed by the parties herein. I have taken the liberty to review the said Deed of Settlement and I note that the suits in respect of which the applications relate are all mentioned in that Deed of Settlement, meaning that they all form a part of the same transactions.
11. Accordingly, it is only fair in my view that all the suits relating to the parties in question be consolidated in the interest of expediting this matter, subject to appropriate case management measures to ensure that issues unique to any one suit are duly addressed.
Disposition
12. The following final orders do hereby issue;
i. The three applications dated 16th October 2024 filed by EQUIP are res judicata, and as such they are struck out with costs meaning that the Bank's applications to strike out these matters succeed.
ii. For the avoidance of doubt, the interim orders issued on 17th October 2024 are hereby vacated.
iii. An order hereby issues consolidating the following suits; HCCOMM E943/2021, HCCOMM 327/2016, HCCOMM 355/2016 and HCCOMM 420/2016. The lead file shall be HCCOMM E943/2021 meaning that all pleadings shall be filed in that matter and parties shall appear as referenced thereafter.
iv. The matter shall proceed to hearing without any further delay.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 24th DAY OF FEBRUARY 2025.
F. MUGAMBI
JUDGE
Background and Introduction
1. This Composite Ruling determines six separate applications, two filed in each matter. The three applications filed by the plaintiff (EQUIP) are all dated 16th October 2024. They seek injunctive relief against the defendants (the Bank) as well as a settlement of certain issues before trial. While the applications seek exactly the same prayers, they relate to different suit properties, more specifically;
a) LR. No. Mn/VI/3074 and LR No. 209/4535 in the case of 420/2016;
b) LR No. 209/8755 Pate Rd, Industrial Area Nairobi in the case of 355/2016 and
c) LR. No 214/172 Muthaiga, Nairobi in the case of 327/2016.
2. The Bank has responded to the said applications and equally filed other applications, dated 17th October 2024. It seeks to set aside the interim orders issued by this court on 17th October 2024 and to secure an injunction against EQUIP, from filing other applications that interfere with the Bank’s right to exercise its statutory power of sale. In each of the cases, the Bank has raised a preliminary point, arguing that the present applications are res judicata and should therefore be struck out. Since this is a jurisdictional issue, it must be determined as a priority.
Analysis and Determination
3. Upon considering the applications, responses, evidence and submissions from both parties, I note that this court has pronounced itself on the question of injunctive relief, no less than six times (6). I have examined various Rulings, including those delivered by Nzioka J on 7th May 2018 in 327/2016; on 5th February 2018 in 420/2016 and on 15th November 2017 in 355/2016. I have equally reviewed the decision by Majanja J delivered on 30th September 2022; Mwita J on 3rd June 2022 and Mulwa J on 19th September 2024.
4. Although these Rulings were delivered in different matters, they all address the injunction applications filed by EQUIP. In every instance, the request for injunctive relief has been denied as many times as it has been sought. Additionally, the issue of a breach of the in duplum rule under Section 44 of the Banking Act, specifically raised in this application, was previously addressed by this court in the Ruling delivered by Nzioka J on 7th May 2018.
5. The Learned Judge held at paragraph 87 that;
“A dispute to the interest charged cannot restrain a mortgagee from exercising its statutory power of sale or entitle an applicant to an order of injunction as the mortgagee is accountable to the mortgagor over funds realized”.
6. In light of the above, it is clear that the issues raised in the applications by EQUIP have already been conclusively determined by this court. The argument that there has been a change in circumstances since 2016 is unpersuasive. Notably, the most recent application was dismissed just one year ago, in 2024. Under the principle of res judicata, matters that have been settled by a competent court cannot be re-litigated (Section 7 Civil Procedure Act).
7. The second prayer in the applications is for settlement of issues. I take the view that the issues raised partly concerns matters that are in dispute between the parties, which this court finds should be resolved at trial. In any event, even if these issues were to be addressed, they are not contingent upon the grant of an injunction. The issue of statement of accounts is already spent as I note that the statements of accounts have been provided to EQUIP by the Bank.
8. During the hearing of the applications I asked the parties to address the court on the question of consolidation of the matters. I note that the various suits filed herein all arise from the facilities extended to EQUIP AGENCIES LIMITED by I & M BANK LIMITED. The facilities were secured by different charges which gave rise to each of the different suits.
9. The power to consolidate suits is a discretional power granted to this court. After careful consideration, I find that although each suit arises from a distinct charge, the underlying factual framework, which is the borrowing by a singular borrower of financial facilities from the same bank, creates substantial commonality. The overlapping issues in fact and law are sufficient basis for consolidating these actions to avoid duplicative litigation and the risk of inconsistent judgments. Moreover, consolidation will obviate the need for multiple separate applications, and streamline the proceedings, reducing the administrative burden on both the parties and the Court.
10. In the cause of submissions, the parties also referred to another additional matter, HCCOMM E943 of 2021. EQUIP confirms that at the center of that suit is the Deed of Settlement executed by the parties herein. I have taken the liberty to review the said Deed of Settlement and I note that the suits in respect of which the applications relate are all mentioned in that Deed of Settlement, meaning that they all form a part of the same transactions.
11. Accordingly, it is only fair in my view that all the suits relating to the parties in question be consolidated in the interest of expediting this matter, subject to appropriate case management measures to ensure that issues unique to any one suit are duly addressed.
Disposition
12. The following final orders do hereby issue;
i. The three applications dated 16th October 2024 filed by EQUIP are res judicata, and as such they are struck out with costs meaning that the Bank's applications to strike out these matters succeed.
ii. For the avoidance of doubt, the interim orders issued on 17th October 2024 are hereby vacated.
iii. An order hereby issues consolidating the following suits; HCCOMM E943/2021, HCCOMM 327/2016, HCCOMM 355/2016 and HCCOMM 420/2016. The lead file shall be HCCOMM E943/2021 meaning that all pleadings shall be filed in that matter and parties shall appear as referenced thereafter.
iv. The matter shall proceed to hearing without any further delay.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 24th DAY OF FEBRUARY 2025.
F. MUGAMBI
JUDGE