CO-OPERATIVE BANK OF KENYA LIMITED
V.
COSMAS MROMBO MOKA & LEGACY AUCTIONEERING SERVICES

JUDGMENT OF THE COURT

[1] The question that implores an answer in this appeal is whether, a matter dismissed for want of prosecution can give rise to application of the doctrine of res judicata if it is filed afresh in a new suit by the same parties. The background of the case that gave rise to this appeal is that Cosmas Mrombo (1^st respondent) filed Malindi High Court Civil Suit No. 7 of 2018 (the latter suit) seeking an injunction to restrain an impending sale of land described as Kilifi/Mtwapa/3104 (the suit land). The sale was by the Cooperative Bank of Kenya Ltd (appellant) to realize the security regarding an outstanding loan facility advanced to the 1^st respondent and secured by the suit land. Given the date of the intended sale was fast drawing near, the 1^st respondent moved court under a certificate of urgency, vide a notice of motion dated 4^th July, 2018 seeking temporary orders of injunction against the sale, pending the hearing and determination of the main suit.

[2] The 1^st…