IN THE COURT OF APPEAL

AT MOMBASA
(CORAM: MURGOR, LAIBUTA & ODUNGA, JJ.A.)
CIVIL APPEAL NO. E055 OF 2022

BETWEEN

BANK OF AFRICA KENYA LIMITED ..................... 1ST APPELLANT

GARAM INVESTMENTS AUCTIONEERS ……..…… 2ND APPELLANT

AND
TSS INVESTMENT LIMITED ............................. 1ST RESPONDENT

CHANGAWA KAZUNGU KITSAO ....................... 2ND RESPONDENT

ALMADDY MDZOMBA MWAGANDA .................. 3RD RESPONDENT

(Being an appeal from the Ruling and Orders of the Environment and
Land Court of Kenya at Mombasa (L. L. Naikuni, J.) dated 24th May
2022

in
E.L.C No. 51 of 2022)
******************
JUDGMENT OF THE COURT
1. The precis of the case on appeal as gathered from the scanty

record as put to us is that the 3rd respondent, TSS Investment

Limited, had charged two parcels of land known as LR Nos.

Mombasa/Block XXI/526 and 527 (the suit properties) to the

1st appellant, Bank of Africa Kenya Limited (the bank) as

security for repayment of a loan or other financial facility in

respect of which the 3rd respondent defaulted, but whose

particulars are not disclosed in the record before us.

2. At all material times, the 1st and 2nd respondents allegedly

carried out a car bazaar business on the suit properties as

tenants of the 3rd respondent, the terms and conditions of

which tenancy are also not disclosed in the record as put to

us. We also find nothing on record to suggest that the alleged

tenancy agreement/lease(s) were registered against the suit

properties.

3. In consequence of the 3rd respondent’s default in repayment

to the 1st appellant of the loan aforesaid, the bank moved to

realise the security and issued a statutory notice of sale

2
 pursuant to section 90(1) of the Land Act, 2012. To this end,

the bank instructed the 2nd appellant, Garam Investments

Auctioneers (Garam) to facilitate the realisation of its security

by sale of the properties by way of public auction.

4. The 2nd appellant advertised sale of the suit properties by

public auction vide a notice dated 9th May 2022 published in

the People’s Daily Newspaper of even date.

5. In an attempt to resist the bank’s right to realise its security,

the 1st and 2nd respondents filed suit against the appellants

and the 3rd respondent in the Environment and Land Court

at Mombasa in ELC Case No. 51 of 2022 vide a plaint dated

12th May 2022 praying for: an injunction to restrain the

appellants from selling, offering for sale, advertising,

alienating, transferring by public auction or private treaty,

disposing of or otherwise completing by conveyance, transfer

of any sale concluded by public auction or private treaty,

taking possession, appointing receivers or exercising any

power conferred by section 90(3) of the Land Act, 2012

3
 leasing, letting, charging or otherwise interfering with the

suit properties; costs and interest.

6. The 1st and 2nd respondents’ case was that they were long-

term tenants in occupation of the 3rd respondent’s properties

aforesaid since the year 2013/2014; that they carried out a

car bazaar business thereon; that in recent times, there came

a stream of prospective buyers coming to inspect the suit

properties ahead of the intended public auction; that the

public auction was a threat to their tenancy and business

operations; that they were not served with any statutory

notices, and that they only became aware of the sale by

public auction on 23rd May 2022 when they received

numerous telephone calls from their business associates

informing them that sale of the properties had been

advertised in the People’s Daily on 9th May 2022; that the

intended sale was premature and that, in any event, none of

the tenants had been issued with notices envisaged under

section 96 of the Land Act; that the 3rd respondent never

4
 informed them that the suit properties were charged; that the

suit properties were occupied by them and their tenants as

business premises, which would have been impossible to

replace in the event of sale; and that they would not be

adequately compensated by an award of damages.

7. It is noteworthy that the 3rd respondent neither entered an

appearance nor filed a defence to the suit. On their part, the

appellants entered appearance, but did not file a defence.

8. Along with their plaint, the 1st and 2nd respondents filed a

Notice of Motion dated 12th May 2022 seeking an interim

injunction pending hearing and determination of their

application and the main suit. The Motion was supported by

the annexed affidavit of the 1st respondent sworn on 12th May

2022 essentially deposing to the grounds on which their

injunctive relief was sought in the Motion and the suit as

aforesaid, but which we need not replicate here. Suffice it to

observe that the grounds on which their Motion was

5
 anchored are identical to those on which they sought

injunctive relief in the main suit.

9. Neither the appellants nor the 3rd respondent filed any

affidavit in reply to the 1st and 2nd respondent’s Motion.

However, the appellants raised a preliminary objection vide a

formal notice dated 18th May 2022 seeking to have the 1st and

2nd respondents’ Motion and suit struck out with costs on the

grounds, inter alia: that the court had no jurisdiction to

entertain the application and the entire suit, as the

jurisdiction in the suit exclusively lay with the High Court;

that the 1st and 2nd respondents lacked locus standi to seek

the above-mentioned reliefs against the Bank as they were

not recognized in law as one of the persons to seek relief

under Section 103 of the Land Act, 2012; that the 1st and 2nd

respondents’ interest was subject to the Bank’s interest

pursuant to Section 25(1)(a) of the Land Registration Act as

the property was encumbered/charged to the Bank; that the

application was res judicata; that the application was fatally

defective as it purported to invite the court to overturn the

6
 various decisions on the issue rendered by this Court, the

High Court and the Environment & Land Court, which are of

equal status; that the application was an abuse of the court

process because numerous similar applications had been

filed in this Court, the High Court and the Environment and

Land Court seeking to stop the sale of the suit properties,

which applications were dismissed; and that the purported

lease agreement between the 1st and 2nd respondents and the

3rd respondent was unenforceable against the Bank, as the

3rd respondent did not obtain consent from the Bank to lease

the charged properties to the 1st and 2nd Respondents

aforesaid in contravention of section 59 of the Land

Registration Act No. 3 of 2012 and section 87 of the Land Act

No. 6 of 2012.

10. Upon hearing the parties, the ELC (L. L. Naikuni, J.)

delivered its ruling dated 24th May 2022 dismissing the

appellants’ preliminary objection. He ordered that the

Motion, being unopposed, be allowed as prayed. In addition,

the learned Judge directed that the appellants do file and

7
 serve their statements of defence and/or counterclaim within

7 days next following; that the 1st and 2nd respondent do file

their replies to the defence and/or counterclaim (if any)

together with any further documents and/or witness

statements; and that the matter be mentioned on 30th July

2022 for the purpose of ascertaining compliance, pre-trial

conference session and fixing of a hearing date.

11. Dissatisfied with the learned Judge’s decision, the

appellants moved to this Court on appeal on a whopping 13

grounds, which go against the grain of rule 88 of the Court

of Appeal Rules, 2022 but which we need not replicate here,

save to mention that they faulted the learned Judge for, inter

alia: holding that the ELC had jurisdiction to hear and

determine the application and the suit; holding that the 1st

and 2nd respondents had locus standi to file the suit by virtue

of being tenants or lessees on the suit properties; granting

the 1st and 2nd respondents an injunction on the basis that

they were not served with the statutory notice in their

capacity as tenants or lessees; holding that the suit and

8
 application were not res judicata; and for failing to appreciate

that the alleged lease agreement between the respondents

was unenforceable against the 1st appellant for failure to

obtain consent from the 1st appellant.

12. In support of the appeal, learned counsel for the

appellants, M/s. Wamae & Allen, filed written submissions

and list of authorities dated 17th January 2023 citing 13

judicial authorities, which we have duly considered. None of

the respondents filed submissions either in support or in

opposition to the appeal.

13. Having considered the record of appeal as put to us, the

impugned ruling, the submissions on record and the law, we

form the view that the appeal before us stands or falls on our

finding on 3 main issues, namely: (i) whether the ELC had

jurisdiction to entertain the 1st and 2nd respondents’ suit; (ii)

whether the 1st and 2nd respondents had locus standi to

challenge the 1st appellant’s exercise of its statutory power of

sale to enforce the security over the suit properties; and (iii)

9
 whether the issues in contention between the appellants and

the 1st and 2nd respondents were res judicata.

14. On the 1st issue as to whether the ELC had jurisdiction to

hear and determine the respondents’ case, the learned Judge

concluded:

“29… I am therefore satisfied beyond doubt

that under Section 13 of the Environment
and Land Court Act, this court has
jurisdiction to entertain any matter that
involves land disputes; that jurisdiction is
however limited to matters relating to
environment and the use and occupation,
and title to land.
30… I fully concur with the Advocate for
the Plaintiffs on this issue while citing the
two (2) recent decisions by the ELC (Munyao
and Yano JJ.). In “Margaret Muthoni
Njoroge (Supra), Munyao J., making direct
reference to Patrick Kangethe, commented
that:-
‘…the Court of Appeal was of opinion that
the case was one that was principally
related to accounts. I do not believe that
the Court of Appeal held that when this
court sees the word “charge” in any
pleadings, then it should drop its pen.’”

15. The question as to whether the ELC had jurisdiction to

entertain the suit turns on the provisions of section 13 of the

Environment and Land Court Act, which provides:

10
 “13. Jurisdiction of the Court
(1) The Court shall have original and appellate
jurisdiction to hear and determine all disputes
in accordance with Article 162(2)(b) of the
Constitution and with the provisions of this Act
or any other law applicable in Kenya relating to
environment and land.
(2) In exercise of its jurisdiction under Article
162(2)(b) of the Constitution, the Court shall
have power to hear and determine disputes—
(a) relating to environmental planning and
protection, climate issues, land use planning,
title, tenure, boundaries, rates, rents,
valuations, mining, minerals and other natural
resources;
(b) relating to compulsory acquisition of land;
(c) relating to land administration and
management;
(d) relating to public, private and community
land and contracts, choses in action or other
instruments granting any enforceable interests
in land; and
(e) any other dispute relating to environment
and land.

16. In Co-operative Bank of Kenya Limited vs. Patrick Kangethe

Njuguna & 5 others [2017] eKLR, this Court held that:

11
“25. The respective jurisdictions of the ELC and
the High Court are well spelt out by
our Constitution. With regard to the
ELC, Article 162(2) & (3) of
the Constitution requires inter alia, that:
Parliament shall establish courts with the
status of the High Court to hear and determine
disputes relating to-a) …
b) The environment and the use and occupation
of, and title to, land ….
36. By definition, a charge is an interest in land
securing the payment of money or money’s
worth or the fulfilment of any condition
(see Section 2 of the Land Act). As such, it gives
rise to a relationship where one person acquires
rights over the land of another as security in
exchange for money or money’s worth. The
rights so acquired are limited to the realization
of the security so advanced (see Section 80 of
the Land Act). The creation of that relationship
therefore, has nothing to do with use of the land
(as defined above). Indeed, that relationship is
simply limited to ensuring that the chargee is
assured of the repayment of the money he has
advanced the chargor.
37. Further, Section 2 aforesaid recognizes a
charge as a disposition in land. A disposition is
distinguishable from land use. While the former
creates the relationship, the latter is the
utilization of the natural resources found on,
above or below the land. As seen before, land
use connotes the alteration of the
environmental conditions prevailing on the
land and has nothing to do with dispositions of

12
 land. Saying that creation of an interest or
disposition amounts to use of the land, is akin
to saying that writing a will bequeathing land
or the act of signing a tenancy agreement
constitute land use. The mere acquisition or
conferment of an interest in land does not
amount to use of that land ….
41. Furthermore, the jurisdiction of the ELC to
deal with disputes relating to contracts
under Section 13 of the ELC Act ought to be
understood within the context of the court’s
jurisdiction to deal with disputes connected to
‘use’ of land as discussed herein above. Such
contracts, in our view, ought to be incidental to
the ‘use’ of land; they do not include mortgages,
charges, collection of dues and rents which fall
within the civil jurisdiction of the High Court.”

17. This position was affirmed by this Court in Joel Kyatha

Mbaluka t/a Mbaluka & Associates Advocates vs. Daniel

Ochieng Ogola t/a Ogola Okello & Co Advocates [2019]

eKLR in the following words:

“[11] It is evident from Article 162(2) of the

Constitution that the intention of the framers
of the Constitution was the creation of special
courts to determine disputes relating to the
environment and the use and occupation of,
and title to, land. This is confirmed by the

13
 preamble to the ELC Act wherein it is stated
that the purpose of the ELC Act is:
‘To give effect to Article 162(2)(b) of the
Constitution; to establish a superior court to
hear and determine disputes relating to the
environment and the use and occupation of,
and title to, land, and to make provision for
its jurisdiction functions and powers, and for
connected purposes.’
[12] We reiterate the position taken in Co-
operative Bank of Kenya Limited v Patrick
Kangethe Njuguna (supra), that in construing
whether the ELC had jurisdiction in a matter,
the consideration must be the dominant issue
in the dispute and whether that issue relates
to the environment and the use and
occupation of, and title to, land.”

18. In view of the foregoing, the only question that falls to be

determined is whether the respondents’ suit against the

appellants involved “… matters relating to environment and

the use and occupation, and title to land”. We do not think

so. In our considered view, the issues in contention in the

suit, and the purpose for which the respondents moved the

trial court for the injunctive relief sought and granted in the

impugned ruling, were intended to forestall the 1st

appellant’s exercise of its statutory power of sale over the suit

14
 properties on the basis of the alleged tenancy relationship

with the 3rd respondent.

19. Accordingly, we do not share the learned Judge’s view that

the issues in contention between the respondents and the

appellants were matters relating to “… the environment and

the use and occupation, and title to land” as contemplated in

Article 162 of the Constitution, section 13 of the Environment

& Land Court Act, and in section 150 of the Land Act. To our

mind, such matters could only be subject to litigation

between the 1st and 2nd respondents as lessees, and the 3rd

respondent as lessor.

20. We form this view taking to mind this Court’s decision in

the afore-cited case of Co-operative Bank of Kenya Limited

vs. Patrick Kangethe Njuguna & 5 others (supra) where it

was held that the ELC only has jurisdiction to deal with

disputes connected to “use” of land and contracts incidental

to the “use” of land, which do not include mortgages, charges,

collection of dues and rents which fall within the civil

15
 jurisdiction of the High Court. Moreover, a charge is a

disposition that has no direct contractual relation to “use”

(by a tenant or licensee) as in this case, of a chargor’s land.

In view of the foregoing, we agree with learned counsel for the

appellants that the learned Judge had no jurisdiction to

entertain the respondents’ suit as pleaded.

21. Even though our holding on the jurisdictional issue

essentially determines and brings to rest the appeal before

us, we nonetheless take cognisance of the fact that it would

be remiss of us not to consider and pronounce ourselves on

the legal position on the remaining two issues.

22. Turning to the 2nd issue as to whether the 1st and 2nd

respondents had locus standi to file the suit, we hasten to

observe that the validity of their claim is entirely dependent

on the nature of their interest in the suit properties. This

Court in Alfred Njau & 5 others vs. City Council of

Nairobi [1983] eKLR defined locus standi thus:

16
 “The term locus standi means a right to
appear in Court and, conversely, as is
stated in Jowitt’s Dictionary of English
Law, to say that a person has no locus
standi means that he has no right to appear
or be heard in such and such a proceeding
…. Lack of locus standi and lack of a cause
of action are two different things. Cause of
action is the fact or combination of facts
which give rise to a right to sue
whereas locus standi is the right to appear
or be heard, in court or other proceedings;
literally it means a place of standing -
see Jowitt’s Dictionary of English Law (2nd
Edn). To say that a person has no cause of
action is not necessarily tantamount to
shutting the person out of the court but to
say he has no locus standi means he cannot
be heard, even on whether or not he has a
case worth listening to.”

23. We take to mind the fact that the 1st and 2nd respondents

were allegedly tenants of the 3rd respondent, and who were

said to have been carrying out car bazaar business on the

suit premises. They also claimed to have sub-tenants

together with whom they were aggrieved on account of failure

by the 1st appellant to notify them of its intention to exercise

17
 its statutory power of sale of the suit properties with the aim

of realising its security under a charge by the 3rd respondent.

24. In principle, the 1st and 2nd respondents had no

contractual or other legal right of claim under the charge on

the basis of which the 1st appellant moved to realise its

security. Furthermore, we do not agree with the learned

Judge’s conclusion that they have locus standi by virtue of

section 96(3) of the Land Act, 2012 which recognises the right

of the chargors’ spouses who consent to the creation of a

charge to question the exercise of the chargee’s power of sale.

Neither do the two have any right or interest recognised

under section 24 of the Land Registration Act, 2012. Indeed,

they do not fall in any of the categories of persons entitled to

seek relief under section 103(1) and (2) of the Land Act, 2012.

25. In our respectful view, the fact that a consenting spouse

has a stake in the charged property with the right to be

served with the notice of the chargee’s exercise of its statutory

power of sale, and to challenge the exercise of such powers

18
 in appropriate cases, does not of itself avail similar rights to

tenants or licensees who are not privy to, or have any stake

in, the charge. In any event, once the 1st appellant issued its

statutory notice of sale to the 3rd respondent, it was under no

statutory or other legal obligation thereafter to issue such

notice to any third party claiming under a tenancy or other

contractual relationship with the 3rd respondent to which the

charge was not subject

26. In Nairobi Mamba Village vs. National Bank of Kenya

[2002] 1 EA 197, Ringera, J. (as he then was) correctly held

that it was only the chargor who could legitimately seek relief

against the exercise by the charge of its power of sale. As the

learned Judge observed:

“In my judgment the only person who can

legitimately complain that the power of sale is
being exercised unlawfully, irregularly or
oppressively is the charger ….

Let me also say that the Plaintiff has an

interest in the charged property for it is both
the security for its indebtedness and the
location of its business. However such an

19
 interest does not suffice to give it locus standi
to obtain an injunction against the chargee.
The debtor’s interest it has in the property is
not a proprietary interest therein and it does
not in my view give it standing to question the
exercise of the power of sale. The lessee or
Licencee’s interest too does not suffice for the
purpose of questioning the exercise of the
power of sale.”

27. Similarly, in Venture Capital and Credit Ltd vs.

Consolidated Bank of Kenya Ltd [2004] 1 EA 357, this

Court found that a debtor who had partly secured a loan by

a charge against a third party’s property could not seek to

restrain or challenge the chargee’s exercise of the statutory

power of sale for want of proprietary interest in the charged

property. In this regard, the Court observed:

“Lastly the Applicant has not shown that if

the order of injunction is not granted, the
appeal, if successful, will be rendered
nugatory. The suit property does not belong to
the Applicant. The owner of the suit property
M/S Komarock View Estate Limited is not a
party to the suit and has not challenged the
intended exercise of statutory power of sale
by the bank. So, even if the suit property is
sold, the Applicant will not lose any

20
 proprietary right to the property. In the
circumstances, if the appeal succeeds
damages would be the only relief appropriate
to the Applicant. It has not been said that the
Respondent’s bank has no means to pay
compensation that may be ordered.”

28. It is noteworthy that this hitherto restricted locus was

expanded vide section 103(1) of the Land Act, 2012 to include

other persons who may seek relief against a chargee.

However, the Land Laws (Amendment) Act, 2016 Act No. 28

of 2016 deleted section 103(1) (d), which had provided that

lessees of the chargors were also entitled to seek relief.

Accordingly, the current section 103(1) reads:

103. Application for relief by charger

(1) An application for relief against the exercise by the

chargee of any of the remedies referred to in section

90 (3) may be made by—

(a) the chargor;

(b) if two or more persons are joint chargors, by one

or more of them on their own behalf;

21
 (c) a spouse of the chargor to the extent that the

spouse was required to give consent to the creation

of the charge but did not give consent;

(d) deleted by Act No. 28 of 2016, s. 75;

(e) the trustee in bankruptcy of the chargor.

29. On the authority of Executive Curtains & Furnishers

Limited vs. Family Finance Building Society [2007]

eKLR), statutory notices are only issued once at the point of

default, and the chargee is not required to repeat or reissue

the notice once it is issued and served upon the charger, the

only party with locus standi to apply for injunction to restrain

the Bank from exercising its statutory power of sale (see

Nairobi Mamba Village vs. National Bank of Kenya [2002]

1 EA 197; Venture Capital and Credit Ltd vs.

Consolidated Bank of Kenya Ltd [2004] 1 EA 357; and

Tazmin Shaffique Allibhai vs. Shaffique Allibhai & I&M

Bank Limited [2020] eKLR).

22
30. On the 3rd issue as to whether the issues in contention in

the appeal before us were res judicata, it is noteworthy that

the 1st and 2nd respondents were not the first or the only ones

to resist the 1st appellant’s move to realise its security. As we

will shortly see, others claiming under the same title had

gone before them albeit unsuccessfully over the same subject

matter and cause of action in the High Court, the ELC, and

on appeal to this Court.

31. The decisive elements to be established in determination

of whether an issue raised in a particular suit is res judicata

were outlined in John Florence Maritime Services Limited

& another vs. Cabinet Secretary Transport &

Infrastructure & 3 others [2021] KESC 39 (KLR) where the

Supreme Court held:

“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

23
 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. 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)”

24
32. Likewise, in Independent Electoral & Boundaries
Commission vs. Maina Kiai & 5 Others [2017] eKLR, this
Court held that:

“ Thus, for the bar of res judicata to be

effectively raised and upheld on account of a
former suit, the following elements must all
be satisfied, as they are rendered not in
disjunctive, but conjunctive terms;
(a) The suit or issue was directly and
substantially in issue in the former suit.
(b) That former suit was between the same
parties or parties under whom they or any of
them claim.
(c) Those parties were litigating under the
same title.
(d) The issue was heard and finally
determined in the former suit.
(e) The court that formerly heard and
determined the issue was competent to try
the subsequent suit or the suit in which the
issue is raised ….
The issue is not meant to be related,
(whatever that may mean) to issues in a
previous suit. The requirement is that the
issue be directly and substantially in issue
…. The non-commonality of issues apart, the
plea of res judicata was bound to fail on the
basis that the parties between the two sets of
proceedings are not the same, or those
claiming under the same parties and
litigating under the same title.”

25
33. In Gladys Nduku Nthuki vs. Letshego Kenya Limited;

Mueni Charles Maingi (Intended Plaintiff) [2022] eKLR,

Odunga, J. (as he then was) held that:

“42. However, it is trite that the mere

addition of parties in a subsequent suit
does not necessarily render the doctrine of
res judicata inapplicable since a party
cannot escape the said doctrine by simply
undertaking a cosmetic surgery to his
pleadings. If the added parties peg their
claim under the same title as the parties
in the earlier suit, the doctrine will still be
invoked since the addition of the party
would in that case be for the sole purpose
of decoration and dressing and nothing
else…

45. It is therefore clear that parties are not

to evade the application of res judicata by
simply conjuring up parties or issues with
a view to giving the case a different
complexion from the one that was given to
the former suit.”

34. First in line with regard to the cases identical to the one

leading to the impugned ruling was the 3rd respondent

company, which resisted sale of the suit properties in

Mombasa HCCC No. 57 of 2016 filed jointly with its

26
 subsidiary companies, and under which they made a number

of interlocutory applications seeking temporary injunction,

as well as their appeals to this Court in Civil Appeal No. 109

of 2016 and Civil Appeal No. 158 of 2018. In our view, that

explains their inaction in the 1st and 2nd respondent’s suit

leading to the ruling subject to appeal herein.

35. Secondly came Mombasa HCCC No. 57 of 2016 - Juja

Coffee Exporters Limited & 3 others vs. Bank of Africa

Limited & 4 others. In a ruling dated 25th January 2022, the

High Court dismissed yet another application seeking to

restrain the bank from exercising its statutory power of sale

on the grounds that it was res judicata, and an abuse of court

process.

36. According to the appellants, other suits and appeals in

which similar issues were raised and determined on their

merit include Mombasa Civil Appeal No. 99 of 2016 – Bank

of Africa vs. Juja Coffee Exporters Limited & 4 others

(consolidated with Civil Appeal No. 109 of 2016 – TSS

Transporters Limited & 2 others vs. Bank of Africa Limited &

27
another. The consolidated appeals related to the case in the

High Court of Kenya at Mombasa HCCC No. 57 of 2016 in

which Juja Coffee Exporters Limited was granted a

conditional temporary injunction against exercise by the

bank of its statutory power of sale of several properties

(including the suit properties herein) that were charged to

secure financial facilities executed by the directors of Juja

Coffee Exporters Limited and two other related companies

(the 3rd respondent and TSS Transporters Limited). The Bank

filed an appeal challenging the injunction as a whole, while

the 3rd respondent, TSS Transporters Limited and Tahir

Sheikh Ahmed filed a separate appeal opposing the condition

imposed for grant of an injunction in terms that they deposit

Kshs. 2.5 million. In a judgment dated 25th January 2018,

this Court allowed the bank’s appeal; dismissed the 3rd

respondent’s appeal; and dismissed the application for

injunction filed by Juja Coffee Exporters in the High Court

case aforesaid.

28
37. In Mombasa HCC No. 80 of 2018 – Osman Tahir Sheikh

Said & 2 others vs. Bank of Africa Limited (the 1st appellant

herein), the executors of the will of the late Tahir Sheikh

Ahmed also filed suit against the Bank challenging the

exercise of its statutory power of sale of the suit properties.

In a ruling dated 7th October 2018, the High Court vacated

orders granting the plaintiffs temporary injunction.

38. In Mombasa Civil Appeal No. 158 of 2018 – Juja Coffee

Exporters Limited & 2 others vs. Bank of Africa Limited &

Another, this Court, In a judgment dated 18th June 2021,

dismissed the appeal filed by the 3rd respondent and its two

related companies seeking to set aside a ruling of the High

Court in Mombasa HCC No. 57 of 2016 dated 5 th April 2018

dismissing their application seeking an injunction to restrain

the Bank from exercising its statutory power of sale over the

suit properties on the basis that the application was res

judicata.

39. Likewise, in Mombasa HCC No. 86 of 2019 – Osman Tahir

Sheikh Said & 2 others vs. Bank of Africa Limited, the

29
 executors of the will of the late Tahir Sheikh Ahmed filed yet

another suit against the Bank seeking temporary injunction

to restrain the Bank from interfering with several properties

including the suit properties herein. The High Court

dismissed the application vide a ruling dated 15th November

2019, having found that the application was res judicata in

view of the fact that similar issues had been raised and

determined on merits by the High Court in HCC No. 80 of

2018 and, subsequently, on appeal to this Court.

40. The multiple proceedings instituted by individuals and

corporate entities not party to the charge over the suit

properties to which only the 1st appellant and the 3rd

respondent were privy clearly demonstrate the spirited albeit

unmerited attempts by third parties to obstruct the 1st

appellant’s rightful exercise of its statutory power of sale. The

multiplicity of suits, the motions for injunctive relief, and the

ensuing appeals determined in favour of the 1st appellant go

a long way in demonstrating that the issues in contention in

the respondents’ suit were res judicata, having been

30
 determined with finality on their merits by courts of

competent jurisdiction, over the same subject matter, and

the same cause of action. To our mind, it matters not that

the 1st and 2nd respondents were not party to the suits

aforesaid. The fact that those suits and Motions raised issues

similar to those in contention between the appellants and the

respondents herein, and over the same subject matter, and

on the same cause of action, rendered them res judicata.

41. It is also noteworthy that the impugned ruling was

rendered in the face of this Court’s decision in Bank of

Africa Limited vs. Juja Coffee Exporters Limited & 4

others [2018] eKLR; Juja Coffee Exporters Limited & 2

Others vs. Bank of Africa Limited & Another, Mombasa

Civil Appeal No. 158 of 2018 (UR); the High Court decision in

Osman Tahir Sheikh Said & 2 Others vs. Bank of Africa

Limited, Mombasa HCC No. 86 of 2019 (UR); and the ELC

decision in the case of Tahir Sheikh Investments Limited

vs. Bank of Africa Limited [2020] eKLR, by which the

31
 matters in contention had been determined with finality. Yet,

those are the very decisions which the impugned ruling

purported to reverse.

42. To our mind, the impugned ruling was against the grain of

this Court’s decision in Mwai Kibaki vs. Daniel Toroitich

Arap Moi [1999] eKLR in which the Court held that the High

Court has no power to overrule this Court; that it has no

jurisdiction to flout the first principles of stare decisis; and

that the High Court must in the end follow the decisions of

this Court, unless they can be distinguished from the case

under review on some other principles.

43. Having carefully considered the record of appeal, the

impugned ruling, the appellants’ submissions, the afore-

cited authorities and the law, we reach the inescapable

conclusion that the ELC had no jurisdiction to entertain the

respondents’ suit; that the 1st and 2nd respondents had no

locus standi to sue the applicants for, inter alia, the injunctive

relief sought; and that the issues raised in the suit and the

32
 Motion in issue were res judicata. Consequently, we find that

the appeal succeeds and is hereby allowed with costs to the

appellants. Those are our orders.

Dated and delivered at Mombasa this 26th day of April, 2024.

A. K. MURGOR

…………………………………
JUDGE OF APPEAL

DR. K. I. LAIBUTA

……………………………………
JUDGE OF APPEAL

G.V. ODUNGA

………………………………...
JUDGE OF APPEAL

I certify that this is the

true copy of the original
signed
DEPUTY REGISTRAR

33