https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12215

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL AND TAX DIVISION CORAM: F. MUGAMBI, J COMM CASE NO. E808 OF 2021 (CONSOLIDATED WITH MISC APPLN NO. E951 OF 2025) BETWEEN ASWA DEVELOPERS & CONTRACTORS LTD ……… 1ST PLAINTIFF/APPLICANT STEPHEN WANG'OMBE KINUTHIA ……… 2ND PLAINTIFF/APPLICANT IRENE NJOKI WANG'OMBE ……………….. 3RD PLAINTIFF/APPLICANT VERSUS SYNERGY INDUSTRIAL CREDIT LTD .. 1ST DEFENDANT/RESPONDENT PHILIPS INTERNATIONAL AUCTIONEERS …….. 2ND DEFENDANT/RESPONDENT RULING Introduction and Background 1. This Ruling disposes of 3 consolidated interlocutory applications: the Plaintiffs' Notice of Motion dated 5th September 2025 seeking review of the decretal sum under Order 45 Rule 1 of the Civil Procedure Rules, the 1st Defendant's Notice of Motion dated HCCCOMM E808/2021, MISC E951/2025 RULING Page 1 12th September 2025 seeking release of Kshs.500,000.00 deposited as security for costs, and the Plaintiffs' further Notice of Motion dated 23rd September 2025 filed in the consolidated file HCCOMM Misc. E951 of 2025 seeking a stay of execution under Order 22 Rule 22. By a consent recorded on 22nd October 2025, all three applications were directed to be heard together by way of written submissions. 2. The present suit has its origin to a Plaint dated 17th September 2021 by which the Plaintiffs sought to restrain the Defendants from repossessing or disposing of the 1st Plaintiff’s assets which had been charged as security for hire-purchase facilities. The ex parte interim injunction granted by Majanja, J on 21st September 2021 was conditional upon the Plaintiffs depositing Kshs.500,000.00 in court. That interlocutory application was dismissed on 4th February 2022 and the interim orders discharged. 3. Following the dismissal, the parties engaged in negotiations and on 25th March 2022, informed the court of a consensus fixing the Plaintiffs' indebtedness at Kshs.45,526,583.00, plus interest at HCCCOMM E808/2021, MISC E951/2025 RULING Page 2 18% per annum on a reducing balance. The amount would be repayable in twenty-six (26) monthly instalments. Upon default by the 1st Plaintiff, the negotiated figure was adopted as a judgment on 20th June 2023 and a Decree issued on 13th July 2023. It is common ground that the Plaintiffs paid Kshs.24,800,000.00 toward this sum by 26th July 2023. 4. During the pendency of these proceedings, the 1st Plaintiff commenced a separate suit, Milimani HCCOMM No. E294 of 2023: Aswa Developers and Contractors Limited v Capital Square Limited and Synergy Industrial Credit Limited, claiming sums due under a road-works contract, against Capital Square Limited (an affiliate of Synergy) as the 1st Defendant therein. In its Defence in that suit, Capital Square Limited pleaded that it had on 18th August 2021, remitted Kshs.12,177,381.35 to the 1st Defendant as a credit on the Plaintiffs' account, a plea the Plaintiffs now invoke as an admission requiring recomputation of the Decree herein. HCCCOMM E808/2021, MISC E951/2025 RULING Page 3 5. On 3rd April 2025, Mabeya J. allowed the Plaintiffs' application dated 26th October 2023 and stayed execution of the Decree pending determination of HCCOMM E294 of 2023, on condition that the Plaintiffs deposit the balance of the decretal sum, Kshs.32,668,329.00 in an interest-earning account within sixty (60) days. The Plaintiffs did not comply. The 1st Defendant consequently instructed the 2nd Defendant to execute, resulting in a Proclamation of Attachment of Moveable Property on 5th August 2025 for a sum of Kshs.72,538,696.00. The Plaintiffs contend that the said sum is inflated because it fails to credit both the Kshs.24,800,000.00 already paid and the Kshs.12,177,381.35 admitted by Capital Square Limited. 6. The 2nd Defendant thereafter commenced Milimani HC. COMM. MISC. Application No. E951 of 2025, seeking police protection to execute the warrants. The Plaintiffs responded with a Notice of Motion dated 23rd September 2025 seeking stay of execution pending the outcome of HCCOMM E294 of 2023, later varied by a further application dated 8th October 2025 offering a bank guarantee in lieu of a cash deposit. In the parent suit, the Plaintiffs HCCCOMM E808/2021, MISC E951/2025 RULING Page 4 separately filed the Notice of Motion dated 5th September 2025 under Order 45 Rule 1 of the Civil Procedure Rules 2010, seeking a review of the decretal sum to Kshs.10,549,201.65 and consequential variation of the deposit ordered on 3rd April 2025. 7. On its part, the 1st Defendant filed the Notice of Motion dated 12th September 2025 seeking release, in partial satisfaction of the Decree, of the Kshs. 500,000.00 deposited in 2021 as a condition for the discharged interim injunction. By consent recorded on 22nd October 2025, HCCOMM E808 of 2021 was consolidated with HCCOMM MISC. Application No. E951 of 2025. The motion dated 8th October 2025 was compromised through the issuance of a Bank Guarantee of even date in the sum of Kshs.10,549,201.65 valid to 6th October 2026. 8. The 1st Defendant opposes the review application through the Replying Affidavit of Jacob Mbae Meeme sworn on 3rd December 2025 denying receipt of the Kshs.12,177,381.35 and asserting that the Decree, being a product of negotiated consensus adopted as judgment, is not amenable to review and HCCCOMM E808/2021, MISC E951/2025 RULING Page 5 that the application dated 23rd September 2025 is res judicata the application dated 26th October 2023 already determined on 3rd April 2025 and that this court is functus officio. It further contends that having furnished a bank guarantee in compliance with the orders of 13th October 2025, the Plaintiffs' application dated 23rd September 2025 is spent and that it is entitled, as an unpaid decree-holder, to the release of the Kshs.500,000.00 security deposit. 9. The Plaintiffs, in their submissions dated 16th February 2026, contend that their applications dated 5th and 23rd September 2025 raise a distinct issue that had not been adjudicated upon, namely, the accounting anomaly occasioned by payments admittedly made but not credited. It is submitted that the said issue is not caught up by the doctrine of res judicata and falls squarely within the ambit of the review jurisdiction conferred by Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Analysis and Determination 10. I have considered the applications, responses thereto and written submissions on record in HCCCOMM E808/2021, MISC E951/2025 RULING Page 6 addressing the substantive issues which I now proceed to determine. On Res Judicata: 11. Section 7 of the Civil Procedure Act, Cap. 21 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, litigating under the same title, in a court of competent jurisdiction and has been heard and finally decided by that court. The provision codifies a rule of public policy directed at finality of litigation and is triggered only where every one of its constituent elements is conjunctively satisfied. 12. In Independent Electoral and Boundaries Commission V Maina Kiai & 5 Others, [2017] eKLR, the Court of Appeal rejected the contention that a subsequent petition, though raising questions cognate to but distinct from those canvassed in an earlier, parent petition, was thereby rendered res judicata. In doing so, the Court held that the bar of res judicata is concerned with whether the specific matter in issue was directly and substantially determined in the earlier proceeding, and not merely HCCCOMM E808/2021, MISC E951/2025 RULING Page 7 whether the two proceedings bear a family resemblance. The Court found that the elements of Section 7 had not been substantiated by the appellant, since the issue raised in the second petition had not in truth been decided in the earlier one. 13. Applying that reasoning and drawing the analogy to the present matter, it is to be observed that the order made on 3rd April 2025, issued pursuant to the Plaintiffs' application dated 26th October 2023, granted a stay of execution pending the determination of HCCOMM E294 of 2023, subject to the condition that the sum of Kshs. 32,668,329.00 be deposited. A careful perusal of that application, and of the Ruling by which it was disposed of, discloses that neither addressed the distinct question that is now argued, namely, whether the decretal sum itself is arithmetically inflated, having regard to the alleged admission contained in Capital Square Limited's Defence and to the further sum of Kshs. 24,800,000.00 conceded to have been paid. 14. Put another way, the question now posed did not, as at 26th October 2023, exist in the form in which it is HCCCOMM E808/2021, MISC E951/2025 RULING Page 8 presently framed, for the Defence filed in HCCOMM E294 of 2023 had not, on the record before me, yet crystallized into a pleaded fact available to the Plaintiffs at that material time. It follows that the application dated 5th September 2025, being a subsequent application, founded as it is upon a materially different factual premise, raises a question that was neither directly nor substantially before the Court on the earlier occasion, and cannot, therefore, be foreclosed. 15. Accordingly, I find that the Notice of Motion dated 23rd September 2025 is not barred by res judicata and that this court retains jurisdiction to entertain it. On review of the decretal sum: 16. Section 80 of the Civil Procedure Act confers on this court the power to review its own decrees or orders on such terms as it thinks fit, subject to the conditions prescribed in Order 45 Rule 1 of the Civil Procedure Rules, 2010. That Rule confines the exercise of the power to three grounds: (a) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the HCCCOMM E808/2021, MISC E951/2025 RULING Page 9 applicant's knowledge or could not be produced at the material time; (b) mistake or error apparent on the face of the record; or (c) any other sufficient reason, to be construed ejusdem generis with the first two grounds. In every case, the application must be made without unreasonable delay. 17. The governing principles were comprehensively restated by Mativo J. (as he then was) in Republic V Advocates Disciplinary Tribunal Ex parte Apollo Mboya, [2019] eKLR where the Learned Judge held, inter alia, that: “An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of the record justifying exercise of power under Section 80 of the Civil Procedure Act. … An erroneous order/decision cannot be corrected in the guise of exercise of power of review … HCCCOMM E808/2021, MISC E951/2025 RULING Page 10 Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.” 18. The holding was expressly upheld and adopted by the Court of Appeal in Osugo V Mogaka & 2 Others, [2024] KECA (KLR). The threshold set by Apollo Mboya (supra) does not support the Plaintiffs' application of 5th September 2025 for two reasons. First, because the alleged admission relied upon by the Plaintiffs, is not self-evident. It is based on Capital Square Limited's own pleaded account in a separate suit, that is HCCOMM E294 of 2023, which is still pending, and to which the 1st Defendant is itself a party. The alleged admission is also importantly, contested. The 1st Defendant, through the Replying Affidavit of Jacob Mbae Meeme sworn 3rd December 2025, denies ever receiving HCCCOMM E808/2021, MISC E951/2025 RULING Page 11 Kshs.12,177,381.35 from Capital Square Limited or any person on its behalf. 19. It is a settled principle of our jurisprudence that an admission, to be acted upon by a court, must be plain and unequivocal, and not merely arguable. This principle finds authoritative expression in Choitram V Nazari, [1984] KLR 327 , where the Court held: “Admissions have to be plain and obvious, as plain as a pikestaff and clearly readable. ... It matters not if the situation is arguable, even if there is a substantial argument, it is an ingredient of jurisprudence, provided that a plain and obvious case is established upon admissions by analysis.” 20. Where, as in this case, the very fact of receipt of the monies in question is disputed by the party against whom the alleged admission is sought to be deployed, that is the 1st Defendant and the dispute is one that can only be resolved through the production of evidence and the process of cross- examination, the matter ceases to be ‘plain as a HCCCOMM E808/2021, MISC E951/2025 RULING Page 12 pikestaff’ and becomes, in the Apollo Mboya formulation, an error requiring a ‘long process of reasoning,’. That is precisely the kind of an error that a review cannot correct. That contested question of fact is properly and exclusively for determination in HCCOMM E294 of 2023, where Capital Square Limited and the 1st Defendant are both parties and may be called to account. For me to review the Decree in the present suit on that basis would be to run the real risk of pre-empting, or of arriving at a finding in conflict with, whatever conclusion the court seized of HCCOMM E294 of 2023 may ultimately reach. 21. Secondly, the Court of Appeal in Benjoh Amalgamated Ltd V Kenya Commercial Bank Ltd, [2014] KECA 872 (KLR) confirms that courts retain residual, inherent jurisdiction independent of the strict statutory review grounds. That power is intended to overcome abuse of process of court or miscarriage of justice. However, such jurisdiction is to be sparingly exercised and does not license a rehearing of settled matters. That residual jurisdiction is relevant to, and dispositive of a HCCCOMM E808/2021, MISC E951/2025 RULING Page 13 narrower point which does not depend on evidence and cross examination. 22. It is not disputed on the record and indeed the 1st Defendant expressly acknowledges that the Plaintiffs have paid Kshs.24,800,000.00 directly to it during the pendency of this suit. That sum is not an admission requiring adjudication elsewhere, it is an undisputed payment made to, and received by the 1st Defendant itself. Continued execution on a computation that omits it as the warrants of 16th July 2025 patently do, claiming Kshs. 72,538,696.00 without any deduction for it offends the equitable principle against unjust enrichment which this residual jurisdiction exists to guard against. 23. This narrow correction is not, properly speaking, tantamount to a re-opening of the negotiated liability and consent judgment. It is rather, the enforcement of the decretal sum in accordance with the sums admittedly and undisputedly already received by the decree holder, in partial satisfaction of the very judgment and decree sought to be enforced, which is a matter apparent on the face of the record. Accordingly, the application dated 5th September HCCCOMM E808/2021, MISC E951/2025 RULING Page 14 2025 fails to the extent that it seeks a review incorporating the disputed Kshs.12,177,381.35. It however succeeds to the extent of directing that any future computation for purposes of execution of the Decree herein shall give credit for the undisputed Kshs.24,800,000.00 already paid directly to the 1st Defendant. On stay of execution pending HCCOMM E294 of 2023: 24. The Plaintiffs seek a continuation of stay pending the hearing and final determination of HCCOMM E294 of 2023, the outcome of which this court in its Ruling of 3rd April 2025, already recognized would in one way or another impact the decree herein. That position has not changed, given the admission that E294 of 2023 may directly inform the arithmetic of the Decree under execution in this matter. The settled principles governing a stay require the applicant to demonstrate that substantial loss may result without the order, that the application was made without unreasonable delay, and that it is willing to furnish security, principles distilled from Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 and consistently applied by this court. HCCCOMM E808/2021, MISC E951/2025 RULING Page 15 25. The record demonstrates each limb. Execution upon a proclaimed sum of Kshs.72,538,696.00 arrived at without crediting Kshs.24,800,000.00 paid and Kshs.12,177,381.35 allegedly admitted, would occasion loss incapable of adequate remedy in damages since a sale of attached moveable business assets is in the ordinary course irreversible. The application was filed promptly upon the Plaintiffs becoming aware of the proclamation of 5th August 2025. As to security, the Plaintiffs have gone beyond mere willingness. A Bank Guarantee dated 8th October 2025 in the sum of Kshs.10,549,201.65 valid to 6th October 2026 has already been issued and its validity is not disputed. To require a deposit of the original undiscounted figure of Kshs.32,668,329.00 would be to render the security obligation itself an instrument of the very unjust enrichment the review jurisdiction exists to forestall, considering the information that is now before the Court. 26. Accordingly, I find that the stay of execution granted on 24th September 2025 and extended on 13th October 2025 ought to be maintained on the security already furnished, pending the final determination of HCCCOMM E808/2021, MISC E951/2025 RULING Page 16 HCCOMM E294 of 2023 or further order of this court. On Release of the Kshs. 500,000.00 security deposit: 27. The sum of Kshs.500,000.00 was deposited on 21st September 2021 solely as a condition for the interim injunction then granted. It was not characterized as, nor intended to operate as part payment of any prospective Decree. Its function was protective and interlocutory, analogous to security for costs and it fell to be returned to the depositor or applied toward any costs order made against that party upon the disposal of the application it secured. The fact that the underlying application was dismissed on 4th February 2022 does not convert the deposit into decretal satisfaction. It remains a fund held pending the final accounting between the parties. 28. For these reasons it would, in my view, be both premature and inconsistent with the finding above to direct release of this sum toward decretal satisfaction while the decretal figure itself stands corrected by this Ruling and remains the subject of an ongoing reconciliation exercise between the parties in light of HCCOMM E294 of 2023. To HCCCOMM E808/2021, MISC E951/2025 RULING Page 17 release the deposit at this stage would also risk the double recovery the Plaintiffs warn against. The equitable course, consistent with the finding in Equity Bank V West Link MBO Limited, [2013] KECA 320 (KLR) that a court must balance the competing interests of the parties within the confines of the law, is to preserve the money pending final determination whereupon it shall be applied toward whatever balance is then found due, or returned to the Plaintiffs as the case may require. Consequently, the Notice of Motion dated 12th September 2025 accordingly fails at this stage, without prejudice to the 1st Defendant’s entitlement to renew the application upon final determination of the corrected outstanding balance. Disposition and final orders 29. For the foregoing reasons, the following orders shall abide: i. The plea of res judicata against the Notice of Motion dated 23rd September 2025 is dismissed. ii. The Notice of Motion dated 5th September 2025 is disallowed to the extent that it seeks review of the HCCCOMM E808/2021, MISC E951/2025 RULING Page 18 decretal sum, that question being reserved for determination in HCCOMM E294 of 2023. iii. The Notice of Motion dated 12th September 2025 is dismissed, without prejudice to the 1st Defendant's right to tax its costs of the application dismissed on 4th February 2022 and thereafter apply to have the deposit, or the certified portion thereof released towards such taxed costs. iv. The Notice of Motion dated 23rd September 2025 is allowed. The stay of execution of the Decree dated 13th July 2023, together with all consequential warrants and processes of execution, shall remain in force on the strength of the Bank Guarantee dated 8th October 2025 already furnished pending the hearing and final determination of Milimani HCCOMM No. E294 of 2023, or further order of this court, whichever is earlier. HCCCOMM E808/2021, MISC E951/2025 RULING Page 19 v. Each party shall bear its own costs of these applications, the outcome being substantially mixed. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 31 ST DAY OF JULY 2026. F. MUGAMBI JUDGE Delivered in presence of: Ms Kiiru for the plaintiffs/applicants Meeme for DH/defendants Court Assistant: Lillian HCCCOMM E808/2021, MISC E951/2025 RULING Page 20