An administrator of the estate of the late Mombasa tycoon Tahir Sheikh Said (TSS) has lost an appeal challenging the striking out of a case she had filed against Kenya Commercial Bank (KCB), regarding charges registered against two parcels of land in Malindi.
The Court of Appeal ruled that it found nothing upon which to fault the High Court for concluding that Ms Fatma TSS’s case was subjudice in two cases at the Environment and Land Court (ELC) in Malindi, thus not capable of being maintained.
‘The judge’s finding on this issue was well-grounded and by no means in error in view of the fact that she purported to litigate over the same issues, subject matter, and parties litigating in two previous suits currently pending determination in Malindi,’ ruled the Court of Appeal.
The Court of Appeal, in its December 5 decision, ruled that Ms Fatma’s contention did not persuade it that allowing KCB’s application to strike out her case and an application (at the High Court) amounted to a denial of her constitutional right to a fair hearing.
‘Had the appellant desired to be granted audience to ventilate allegations of fraud and illegality stemming from alleged ‘new evidence,’ nothing would have been easier for her than to seek joinder as a plaintiff or interested party in either of the earlier cases and present evidence as may be necessary to prove claims pleaded in her case,’ ruled the Court of Appeal.
The Court of Appeal further said that Ms Fatma would be more than welcome as a witness and close member of the deceased’s family to testify on any of the common issues raised in the cases.
It said that initiating a separate case in a different court over the same issues, parties, and subject matter was nothing short of an abuse of the court process.
‘We reach the inescapable conclusion that the appeal has no merit and is hereby dismissed with costs to the respondent (KCB),’ ruled the Court of Appeal.
Through her lawyer, Ms Fatma had told the Court of Appeal that the High Court misapprehended the law on res judicata (issue already decided) and that no evidence was adduced to demonstrate that the plaintiffs in Malindi ELC cases were connected to her.
She said that the basis for her case was evidence of fraud relating to forged charge documents alleged to have been signed by the deceased (TSS) in the form of a forensic report produced in a criminal case. She argued that the new evidence could not have been available in the earlier cases.
KCB, through its lawyer, opposed the appeal, arguing that the High Court was correct in holding that Ms Fatma’s application was res judicata and that a comparison of the two applications revealed that the subject matter was the properties.
The lawyer also argued that applications related to the same borrowing/transaction secured by the charges created by the deceased in favour of KCB, and that the action which triggered all the cases was the commencement of realization of the securities by the bank.
At the High Court, Ms Fatma had sought a declaration that the charges created over the properties were forgeries, illegal, null, and void.
She wanted the order for the cancellation of the charges registered against the properties.
Ms Fatma also sought an injunction restraining the bank from selling, disposing of by public auction or otherwise, the properties.
However, KCB filed an application seeking that the case by Ms Fatma together with the ensuing proceedings be struck out on account of being sub judice to two cases at the ELC Malindi.
The High Court went on to strike Ms Fatma’s application as fatally incompetent on the grounds of res judicata and allowed KCB’s application.