Introduction
1. Before this Court for determination is the Notice of Motion Application dated 17th December 2024 (hereinafter "the Instant Application"), filed by William Mutisya Mbaluto (hereinafter "the Applicant"). The Application seeks, inter alia, temporary injunctive and/or conservatory orders to restrain the Respondents from proceeding with the sale of property known as NAIROBI/BLOCK 109/417/537 (hereinafter "the suit property") pending the hearing and determination of the main suit. The Application is supported by the Supporting Affidavit sworn by the Applicant on 16th December 2024.
2. The 1st Defendant/Respondent, SBM Bank Kenya Limited (hereinafter "the 1st Respondent"), has opposed the Instant Application vide the Replying Affidavit sworn by Jonnes Mua Nzivo on 5th March 2025 and filed on the same date, stating primarily that the Instant Application is res judicata and constitutes an abuse of the court's process, similar orders having been previously sought and denied by a court of competent and concurrent jurisdiction.
3. The background of the primary dispute, as gleaned from both parties' submissions, are as follows: The Applicant initiated this suit in 2022, seeking, among other reliefs, an interlocutory injunction to protect the suit property. Initially, interim injunction orders were granted ex parte. However, following an inter partes hearing, the interim orders were discharged by the late Hon. Justice D.S. Majanja in a Ruling delivered on 6th March 2023.
4. Subsequent to the ruling, the main suit proceeded to a pre-trial conference and was certified as ready for hearing, with a substantive hearing date set for 6th March 2025. However, prior to the scheduled hearing, the 1st Respondent, through its agents, Keysian Auctioneers, issued a 45-day notice of sale of the suit property by way of public auction, effective from 16th January 2025.
5. Aggrieved by the “45-day notice”, the Applicant filed the Instant Application on 17th December 2024, once again seeking temporary injunctive orders to prevent the sale of the suit property.
6. The matter was canvassed by way of written submissions. The Applicant filed his submissions dated 29th March 2025, whilst the Respondent’s submissions are dated 1st April 2025.
Analysis and Determination of Issues
7. From the submissions presented by both parties, the following issues fall for determination by this Honourable Court: -
a) Whether the Instant Application is Res Judicata.
b) Whether the Instant Application seeks for this Honourable Court to sit on appeal of a decision made by a Court of concurrent jurisdiction.
c) Whether the Applicant has established the principles for the grant of a temporary injunction, notwithstanding the foregoing preliminary points.
Whether the Instant Application is Res Judicata
8. The doctrine of res judicata, enshrined in Section 7 of the Civil Procedure Act (Cap 21, Laws of Kenya). The Section provides that: -
"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 or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court."
7. It is well-established that this doctrine applies not only to substantive suits but also to interlocutory applications within a suit. The Court of Appeal, in Uhuru Highway Development Ltd vs. Central Bank of Kenya & 2 Others, Civil Appeal No. 36 of 1996, emphatically stated that "There must be an end to interlocutory applications as much as there ought to be an end to litigation." This position was reiterated in Panna Dilip Chauhan v Bank of Africa Kenya Limited & another [2021] eKLR, cited by the 1st Respondent.
8. The following conditions must be met for res judicata to apply: (i) Same subject matter – the matter directly and substantially in issue must be the same; (ii) Same parties – the parties must be the same or litigating under the same title; (iii) Competent court: The previous court must have been competent, and (iv) Finally decided: The issue must have been heard and finally decided.
9. Applying the above criteria to the present case: The parties are undeniably the same: William Mutisya Mbaluto is Applicant, with SBM Bank Kenya Limited being the 1st Respondent in both cases. The court (High Court) is competent. The late Hon. Justice D.S. Majanja (may he rest in peace) was a Judge of this Court, and his ruling was a decision of a competent court.
10. However, the matter in issue in the 1st Injunction Application was an interlocutory injunction to restrain the sale of the suit property. The 1st Respondent contends that the Instant Application seeks similar orders. The Applicant, while seeking similar type of relief (injunction), grounds the Instant Application on the new event of the 45-day notice issued on 16th January 2025, which occurred after the dismissal of the 1st Injunction Application. This raises the question of whether the "matter in issue" is truly identical or if the subsequent event creates a fresh cause for the application.
11. The critical aspect here is whether the issue was "finally decided" such that it bars re-litigation, especially when a new event triggers a renewed application for the same type of relief. When an interlocutory application for an injunction is dismissed, it is finally decided on the facts and circumstances prevailing at that time. However, if new facts arise that were not and could not have been before the court at the time of the previous decision, then a subsequent application may not be res judicata. This is because the "matter in issue" in the second application incorporates a new material fact.
12. The Applicant herein submits that the 1st Respondent, "in complete disregard of the pending proceedings, instructed its agents... to issue a 45-day notice of sale... effective from 16th January 2025." This notice was issued after the dismissal of the first injunction application and after the main suit was certified ready for hearing. The Applicant argues that this action is a delaying tactic and, crucially, threatens to render the pending suit nugatory by destroying its substratum. The Applicant's arguments regarding lis pendens and the need to preserve the substratum are predicated on this new act of issuing a notice of sale.
13. The 1st Respondent's submissions on res judicata cite cases where subsequent applications sought identical orders without any new material facts. For instance, in Stephen Kibiego Melly & another v Consolidated Bank of Kenya Limited [2019] eKLR, the earlier application was determined/compromised through the impugned consent, implying a finality on the specific relief sought.
14. The distinction here lies in the catalyst for the current application. The Applicant is not merely re-filing the same application hoping for a different outcome on the same set of facts that existed up to 6th March 2023. Instead, the Applicant is responding to a new overt act by the 1st Respondent – the issuance of a 45-day notice of sale after the first injunction was dismissed and while the main suit is pending hearing.
15. This new act constitutes a fresh threat to the substratum of the suit, giving rise to a new and distinct ground for seeking injunctive relief, even if the type of relief sought remains the same. The "matter in issue" in the Instant Application is therefore not merely whether an injunction should issue generally, but whether an injunction should issue in light of the 45-day notice of sale issued on 16th January 2025, which threatens the substratum of a suit now certified for hearing. This specific factual predicate was not present when Justice Majanja made his ruling.
16. Accordingly, I find that the Instant Application is not res judicata because it is predicated upon a new and material fact (the 45-day notice of sale) that arose after the dismissal of the 1st Injunction Application and which directly threatens the substratum of the pending suit.
Whether this is an Appeal
17. The 1st Respondent argues that the Instant Application is an attempt to have this Court, a court of concurrent jurisdiction, review or overturn a decision made by a Judge of the same court.
18. This Court is however of the view that in context of my findings on the question of res judicata, it logically follows that this Court is not being asked to sit on appeal of Justice Majanja's earlier ruling. Rather, this Court is being asked to consider a new application based on a new set of circumstances that constitutes a fresh threat to the suit property.
On temporary Injunction
19. Having determined that the application is not barred by res judicata or by the principle of a court sitting on appeal, I now turn to the merits of the Applicant's request for a temporary injunction. The principles governing the grant of temporary injunctions are well-settled in the locus classicus case of Giella v Cassman Brown & Co. Ltd [1973] EA 358:-
1. The Applicant must establish a prima facie case with a probability of success.
2. The Applicant must demonstrate that they will suffer irreparable harm that cannot be adequately compensated by an award of damages.
3. If the Court is in doubt, it should determine the matter on the balance of convenience.
20. A prima facie case, as defined in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, is "a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter."
21. The Applicant argues that the 1st Respondent's action of issuing a 45-day notice of sale while the main suit is pending and certified for hearing demonstrates a clear intent to defeat the Applicant's claim and is an abuse of court process. The Applicant highlights that the suit property is the substratum of the claim.
22. The Court notes that the main suit is already certified ready for hearing. This implies that the Applicant, at that stage, had disclosed a triable issue. The issuance of a notice of sale of the suit property by the 1st Respondent, while litigation directly concerning that property is active and awaiting substantive determination, raises serious concerns about pre-empting the court's decision. The doctrine of lis pendens, as alluded to by the Applicant, seeks to prevent such alienation during the pendency of a suit, preserving the status quo and the effectiveness of any future judgment.
23. Without delving into the merits of the main suit, this Court is of the view that the act of attempting to sell the suit property while a suit directly challenging the propriety of such sale is awaiting hearing establishes a prima facie case that the Respondent's actions may infringe upon the Applicant's right to a fair and effective judicial process.
24. On irreparable harm, I find merit in the Applicant’s submissions that if the injunction is not granted, the suit property may be transferred to third parties not party to the proceedings, rendering the suit purely academic exercise. It is the Court’s view that it is necessary preserve the subject property pending determination of the suit, to avoid the substratum of the suit being destroyed.
25. Finally, balance of convenience obviously favours the granting of the injunctive order. The case of Mrao Ltd v First American Bank of Kenya Ltd & 2 Others (supra), is clear that "Where a matter is pending before the court, parties should not take steps that may pre-empt the outcome of the suit or render it useless."
26. In the present case, the suit has already been certified for hearing, and a date (now past) had been set. This implies that the resolution of the main dispute is imminent. Allowing the sale to proceed at this juncture, despite the ongoing litigation concerning the property, would undeniably place the Applicant in a far worse position than the 1st Respondent.
Final Orders
27. For the reasons stated above, this Honourable Court makes the following orders:-
a. That a temporary injunction be and is hereby issued restraining the 1st Defendant/Respondent, whether by itself, its agents, servants, auctioneers, or anyone acting under their instructions, from auctioning, selling, transferring, alienating, or in any other way dealing with land registration number NAIROBI/BLOCK 109/417/537 (the suit property) pending the hearing and determination of the main suit.
b. This matter be fixed for hearing on a priority basis.
c. Costs to be in the cause.
28. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
10TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Ms. Maingi…………….…..for the Applicant
Orenge……………….…... for the Respondent
1. Before this Court for determination is the Notice of Motion Application dated 17th December 2024 (hereinafter "the Instant Application"), filed by William Mutisya Mbaluto (hereinafter "the Applicant"). The Application seeks, inter alia, temporary injunctive and/or conservatory orders to restrain the Respondents from proceeding with the sale of property known as NAIROBI/BLOCK 109/417/537 (hereinafter "the suit property") pending the hearing and determination of the main suit. The Application is supported by the Supporting Affidavit sworn by the Applicant on 16th December 2024.
2. The 1st Defendant/Respondent, SBM Bank Kenya Limited (hereinafter "the 1st Respondent"), has opposed the Instant Application vide the Replying Affidavit sworn by Jonnes Mua Nzivo on 5th March 2025 and filed on the same date, stating primarily that the Instant Application is res judicata and constitutes an abuse of the court's process, similar orders having been previously sought and denied by a court of competent and concurrent jurisdiction.
3. The background of the primary dispute, as gleaned from both parties' submissions, are as follows: The Applicant initiated this suit in 2022, seeking, among other reliefs, an interlocutory injunction to protect the suit property. Initially, interim injunction orders were granted ex parte. However, following an inter partes hearing, the interim orders were discharged by the late Hon. Justice D.S. Majanja in a Ruling delivered on 6th March 2023.
4. Subsequent to the ruling, the main suit proceeded to a pre-trial conference and was certified as ready for hearing, with a substantive hearing date set for 6th March 2025. However, prior to the scheduled hearing, the 1st Respondent, through its agents, Keysian Auctioneers, issued a 45-day notice of sale of the suit property by way of public auction, effective from 16th January 2025.
5. Aggrieved by the “45-day notice”, the Applicant filed the Instant Application on 17th December 2024, once again seeking temporary injunctive orders to prevent the sale of the suit property.
6. The matter was canvassed by way of written submissions. The Applicant filed his submissions dated 29th March 2025, whilst the Respondent’s submissions are dated 1st April 2025.
Analysis and Determination of Issues
7. From the submissions presented by both parties, the following issues fall for determination by this Honourable Court: -
a) Whether the Instant Application is Res Judicata.
b) Whether the Instant Application seeks for this Honourable Court to sit on appeal of a decision made by a Court of concurrent jurisdiction.
c) Whether the Applicant has established the principles for the grant of a temporary injunction, notwithstanding the foregoing preliminary points.
Whether the Instant Application is Res Judicata
8. The doctrine of res judicata, enshrined in Section 7 of the Civil Procedure Act (Cap 21, Laws of Kenya). The Section provides that: -
"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 or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court."
7. It is well-established that this doctrine applies not only to substantive suits but also to interlocutory applications within a suit. The Court of Appeal, in Uhuru Highway Development Ltd vs. Central Bank of Kenya & 2 Others, Civil Appeal No. 36 of 1996, emphatically stated that "There must be an end to interlocutory applications as much as there ought to be an end to litigation." This position was reiterated in Panna Dilip Chauhan v Bank of Africa Kenya Limited & another [2021] eKLR, cited by the 1st Respondent.
8. The following conditions must be met for res judicata to apply: (i) Same subject matter – the matter directly and substantially in issue must be the same; (ii) Same parties – the parties must be the same or litigating under the same title; (iii) Competent court: The previous court must have been competent, and (iv) Finally decided: The issue must have been heard and finally decided.
9. Applying the above criteria to the present case: The parties are undeniably the same: William Mutisya Mbaluto is Applicant, with SBM Bank Kenya Limited being the 1st Respondent in both cases. The court (High Court) is competent. The late Hon. Justice D.S. Majanja (may he rest in peace) was a Judge of this Court, and his ruling was a decision of a competent court.
10. However, the matter in issue in the 1st Injunction Application was an interlocutory injunction to restrain the sale of the suit property. The 1st Respondent contends that the Instant Application seeks similar orders. The Applicant, while seeking similar type of relief (injunction), grounds the Instant Application on the new event of the 45-day notice issued on 16th January 2025, which occurred after the dismissal of the 1st Injunction Application. This raises the question of whether the "matter in issue" is truly identical or if the subsequent event creates a fresh cause for the application.
11. The critical aspect here is whether the issue was "finally decided" such that it bars re-litigation, especially when a new event triggers a renewed application for the same type of relief. When an interlocutory application for an injunction is dismissed, it is finally decided on the facts and circumstances prevailing at that time. However, if new facts arise that were not and could not have been before the court at the time of the previous decision, then a subsequent application may not be res judicata. This is because the "matter in issue" in the second application incorporates a new material fact.
12. The Applicant herein submits that the 1st Respondent, "in complete disregard of the pending proceedings, instructed its agents... to issue a 45-day notice of sale... effective from 16th January 2025." This notice was issued after the dismissal of the first injunction application and after the main suit was certified ready for hearing. The Applicant argues that this action is a delaying tactic and, crucially, threatens to render the pending suit nugatory by destroying its substratum. The Applicant's arguments regarding lis pendens and the need to preserve the substratum are predicated on this new act of issuing a notice of sale.
13. The 1st Respondent's submissions on res judicata cite cases where subsequent applications sought identical orders without any new material facts. For instance, in Stephen Kibiego Melly & another v Consolidated Bank of Kenya Limited [2019] eKLR, the earlier application was determined/compromised through the impugned consent, implying a finality on the specific relief sought.
14. The distinction here lies in the catalyst for the current application. The Applicant is not merely re-filing the same application hoping for a different outcome on the same set of facts that existed up to 6th March 2023. Instead, the Applicant is responding to a new overt act by the 1st Respondent – the issuance of a 45-day notice of sale after the first injunction was dismissed and while the main suit is pending hearing.
15. This new act constitutes a fresh threat to the substratum of the suit, giving rise to a new and distinct ground for seeking injunctive relief, even if the type of relief sought remains the same. The "matter in issue" in the Instant Application is therefore not merely whether an injunction should issue generally, but whether an injunction should issue in light of the 45-day notice of sale issued on 16th January 2025, which threatens the substratum of a suit now certified for hearing. This specific factual predicate was not present when Justice Majanja made his ruling.
16. Accordingly, I find that the Instant Application is not res judicata because it is predicated upon a new and material fact (the 45-day notice of sale) that arose after the dismissal of the 1st Injunction Application and which directly threatens the substratum of the pending suit.
Whether this is an Appeal
17. The 1st Respondent argues that the Instant Application is an attempt to have this Court, a court of concurrent jurisdiction, review or overturn a decision made by a Judge of the same court.
18. This Court is however of the view that in context of my findings on the question of res judicata, it logically follows that this Court is not being asked to sit on appeal of Justice Majanja's earlier ruling. Rather, this Court is being asked to consider a new application based on a new set of circumstances that constitutes a fresh threat to the suit property.
On temporary Injunction
19. Having determined that the application is not barred by res judicata or by the principle of a court sitting on appeal, I now turn to the merits of the Applicant's request for a temporary injunction. The principles governing the grant of temporary injunctions are well-settled in the locus classicus case of Giella v Cassman Brown & Co. Ltd [1973] EA 358:-
1. The Applicant must establish a prima facie case with a probability of success.
2. The Applicant must demonstrate that they will suffer irreparable harm that cannot be adequately compensated by an award of damages.
3. If the Court is in doubt, it should determine the matter on the balance of convenience.
20. A prima facie case, as defined in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] eKLR, is "a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter."
21. The Applicant argues that the 1st Respondent's action of issuing a 45-day notice of sale while the main suit is pending and certified for hearing demonstrates a clear intent to defeat the Applicant's claim and is an abuse of court process. The Applicant highlights that the suit property is the substratum of the claim.
22. The Court notes that the main suit is already certified ready for hearing. This implies that the Applicant, at that stage, had disclosed a triable issue. The issuance of a notice of sale of the suit property by the 1st Respondent, while litigation directly concerning that property is active and awaiting substantive determination, raises serious concerns about pre-empting the court's decision. The doctrine of lis pendens, as alluded to by the Applicant, seeks to prevent such alienation during the pendency of a suit, preserving the status quo and the effectiveness of any future judgment.
23. Without delving into the merits of the main suit, this Court is of the view that the act of attempting to sell the suit property while a suit directly challenging the propriety of such sale is awaiting hearing establishes a prima facie case that the Respondent's actions may infringe upon the Applicant's right to a fair and effective judicial process.
24. On irreparable harm, I find merit in the Applicant’s submissions that if the injunction is not granted, the suit property may be transferred to third parties not party to the proceedings, rendering the suit purely academic exercise. It is the Court’s view that it is necessary preserve the subject property pending determination of the suit, to avoid the substratum of the suit being destroyed.
25. Finally, balance of convenience obviously favours the granting of the injunctive order. The case of Mrao Ltd v First American Bank of Kenya Ltd & 2 Others (supra), is clear that "Where a matter is pending before the court, parties should not take steps that may pre-empt the outcome of the suit or render it useless."
26. In the present case, the suit has already been certified for hearing, and a date (now past) had been set. This implies that the resolution of the main dispute is imminent. Allowing the sale to proceed at this juncture, despite the ongoing litigation concerning the property, would undeniably place the Applicant in a far worse position than the 1st Respondent.
Final Orders
27. For the reasons stated above, this Honourable Court makes the following orders:-
a. That a temporary injunction be and is hereby issued restraining the 1st Defendant/Respondent, whether by itself, its agents, servants, auctioneers, or anyone acting under their instructions, from auctioning, selling, transferring, alienating, or in any other way dealing with land registration number NAIROBI/BLOCK 109/417/537 (the suit property) pending the hearing and determination of the main suit.
b. This matter be fixed for hearing on a priority basis.
c. Costs to be in the cause.
28. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
10TH DAY OF JULY 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Ms. Maingi…………….…..for the Applicant
Orenge……………….…... for the Respondent