https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11661

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL & TAX DIVISION** **CIVIL SUIT NO. HCCOM E611 OF 2023** **GEORGE NGA'NG'A MBUGUA T/A** **NG'ANG'A MBUGUA & CO. ADVOCATES………………………. PLAINTIFFS** **VERSUS** **ORION EAST AFRICA LIMITED………………………………..1ST DEFENDANT** **RUO MAINA…………………………………………………...2ND DEFENDANT** **WATIRI RUO…………………………………………………...3RD DEFENDANT** **TRACY RUO…………………………………………………….4TH DEFENDANT** **MARK RUO…………………………………………….…..…..5TH DEFENDANT** **ERICA RUO……………………………………………………..6TH DEFENDANT** **RULING** 1. The Court is called upon to answer the simple question as to whether it should allow an interlocutory application that seeks no definitive or substantive prayers. 2. This Ruling arises out of an interlocutory application by the Defendants. The matter is pending highlighting of final submissions, so that the Court can retire to consider and write the Judgement herein. **Background Facts** 3. The Defendants filed the Notice of Motion dated 9th April, 2026 seeking the following orders; 1. *This Application be certified urgent and be heard on an exparte basis in the first instance. (spent)* 2. *That pending the determination of this Application claim, there be a stay of any Orders previously issued by the Court. (spent)* 3. *The Court grants any further Orders that deems fit or expedient*. 4. The Application is said to rely on the following grounds; 1. *THAT the Plaintiff's case is set out in the form of a Demmurr, a Demurrer is a procedural tool used by a defendant to argue that even if all allegations by the plaintiffs are true, which they are not, they do not constitute a valid legal claim. For example, Crucial supporting documents like bank account paper trails of the funds, syndicate loan application particulars and witness statements from Advocates Wanja Mukiri and Advocate Kaka Kamau who are members of this honorable court and are allegedly mentioned in court documents to have been present and personally participated in drafting negotiable documents at all material times during the execution of the transactions and the signing of the controversial agreement dated 24th August, 2022 are conveniently missing. See annexures at pages 646- 654 of the bundle of documents.* *Here is an analysis of how the plaintiff's case is set out and adequately challenged in these contexts:* *Definition of the Challenge: A demurrer or similar motion asserts that the plaint/complaint discloses no reasonable cause of action in law, or that it constitutes mere claims without any conviction, evidence or documentary proof, which do not raise any triable issues.* *The Plaintiffs Pleadings: The plaintiffs case was initially set out in a "plaint" or complaint, which is missing all necessary legal elements and documentary material facts to support its claim, such as proof of particulars of the money paper trail, proof that the Defendants intended to actuate any fraud or breached any contract or any properly deposited securitization/lien documents or actually transferred any ownership of property known as LR: 12672/47 Golders' Green Place Runda.* *The "Demurrer" Challenge: The Defendants argue that the Plaintiffs pleadings are legally insufficient-often referred to as a "demurrer of something worse than a demurer" as the case is completely incurable for lack of documentary evidential proof capable of tilting the case in favor of the Plaintiffs.* *Purpose: This procedure was invoked by the Defendants from the beginning to avoid wasting the court's time as the lawsuit was deemed to lack legal basis, essentially, we had asked the court to dismiss the case early on for lack of evidential proof and the Plaintiffs over-relying on a fictitious un-enforceable agreement dated 24th August, 2022. See annexures of that controversial agreement dated 24th August, 2022 at pages 647-654 in the bundle of documents.* 1. *THAT the Plaintiff's realized the insufficiency of the context of their case and filed an amended plaint without adding any details or providing the vital missing documentary evidence concerning actuation of fraud, illegality, or specific breaches to overcome the lack of documentary challenges existing in the original plaint. Evidential proof in law is the body of facts, testimony, documents, or physical items presented to a court to establish the truth of a matter. It acts as the substantive basis for judicial decisions, regulated by procedural rules to ensure facts are proven to a necessary standard, such as "beyond a reasonable doubt" in criminal law or "preponderance of evidence" in Civil Litigation.* 2. *THAT the Plaintiffs refused and or failed to attach any evidential or documentary proof because non-existed, so they decided to fabricate evidence as shown in their fictitious agreement dated 24th August, 2022. See annexures at pages 646-654 in the bundle of documents.* 3. *THAT the key aspect of the Guarantor law is that, no one can be legally held as a guarantor without their explicit written consent.* 4. *THAT the purported Guarantor never agreed to be held as a Guarantor as he is not qualified to be a Guarantor without a strong credit history or sufficient income, having retired from gainful employment without income or a pension in 2015. 9.* 5. *THAT the purported lender Mr. George Ng'ang'a Mbugua of ID Number 21672807 and of Post Office Box No. 9316- 10. 11. 12. 00200 Nairobi is unable to show that he had any money in his bank account to lend to the Defendants.* 6. *THAT Mr. Ng'ang'a Mbugua is confused and is irregularly making his claim against the wrong parties as Orion East Africa Limited has No record of ever applying or receiving any loans, agreements or offers for loans from the Applicants and neither has Mr. Ruo Maina who is a victim or a convenient fall guy in this matters (sic). Furthermore, the attached documentation shows that Mr. Ruo Maina had disposed off (sic) his shareholding in Orion East Africa Limited in 2018 and could NOT therefore have possibly entered into any agreement to borrow from the Plaintiffs/Applicants without the written mandate of shareholders with full donated legal capacities.* 7. *THAT despite numerous communication and demands for information by the Defendants to support its claims, the Plaintiff/Applicants have failed and or refused to provide any proof or supporting documentation on their claim like say, Loan Application forms, Term Sheets of the feigned Loans, Loan Disbursement particulars or paper trail showing bank details, Bank deposit slips, interest rates applicable or any conditions precedent in default of the purported loans.* 8. *THAT the Defendants have failed to provide source documents pertaining to how the purported loan agreement doubled by an odious 100% from Kshs.9,100,000 to Kshs. 18,200,000 within six months. And whether indeed the purported loan reached the bank accounts of the vendor of Property Nairobi LR. 12672/47 Golders Green Place, M/s Ite Farmers' Co-operative Society Limited or the purported 13. vendee Orion East Africa Limited and were there official receipts issued for that payments which in our view should have been a precedent testament before moving this Honorable Court with unbelievable lies.* 9. *THAT the Applicant has refused to provide the original source documentary evidence complying with section 79 (7) of the Lands Act on how the claimed informal charge was obtained and further, failed to provide proof on how the Certificate of Title for Nairobi LR. 12672/47 Golders' Green Place was found in its custody. The false narrative peddled by the corrupt rogue Advocate Nga'ng'a Mbugua that the Certificate of Title for Nairobi LR. 12672/47 Golders' Green Place was deposited as a lien is a fabricated lie intended to hoodwink this honorable court in order to achieve unjust enrichment.* 10. *THAT in our humble submissions, we have ultimately relied heavily upon the Defendants Replying Affidavit dated 4th January, 2024; Defendants Statement of Defense and Counter/Cross Claim dated 15th January, 2024; Defendants Response to the Plaintiffs Submission dated 1st February, 2024; Grounds of Objection dated 6th March, 2024; Defendants Counter/Cross Claim and Verifying Affidavit dated 17th April. 2024 and all annexures and supporting documents attached therein.* 11. *THAT we also pray that the Plaintiffs/Applicants be compelled by an Order of this honorable Court to deposit in court for our collection Kshs. 1 Billion Vicarious Tort for loss of income resulting from interfering with the sales transaction and causing monumental financial loss of income and causing detriment to property LR. 12672/47 Golders Green Place Runda and further, deposit all the files mentioned in his letter of withdrawal to act Ref: MN/G&N/23 in this honorable court for our collection.* 12. *THAT the Plaintiffs/Applicants be compelled to deposit the fully discharged title documents for LR: 12672/47 without any* encumbrances. 13. *THAT the costs in this application be provided in the cause.* 5. In response, the Plaintiff filed the Grounds of Opposition dated 30th April, 2026 on the following grounds, 1. *The application is totally misconceived, has no merit and is part of the scheme employed by the Defendants to derail the course of justice by filing successive vexatious applications to delay conclusion of the case.* 2. *The application contravenes directions issued by this court on 12th September, 2024 that no more interlocutory application would be entertained to enable final and conclusive determination of the main suit.* 3. *The application is in any event overtaken by events as the main suit was heard on 24th February, 2026, both parties have filed their final submissions and the matter is pending judgment.* 4. *The application is vague, vexatious, mischievous, not justiciable as it does not specify the particular orders of the court it seeks to stay and hence incapable of a response.* 5. *The application is incompetent and fatally defective for want of a supporting affidavit.* 6. *The application is otherwise an abuse of the court process.* 7. *Consequently, the Application dated 9th April 2026 is fatally defective, incompetent and should be dismissed and/or struck out in limine.* **Issues for determination** 6. The Court has considered the Application, Grounds of Opposition and the Plaintiff’s submissions. Mr. Ruo Maina pleads his case as a Senior Citizen, an Intercessor and an Interlocutor on behalf of the Defendants. In essence he is acting in person. He did not appear in Court for the mentions set out by the Court. Notwithstanding the non-attendance, the Court has opted to determine the application on merits. The main issue for determination is as follows: 1. *Whether the Application is merited.* **Analysis** 7. The Plaintiff submitted that the Defendants' application is fatally vague and incompetent. That it fails to disclose the specific reliefs sought or the legal consequences that would follow if the application were to be allowed. Accordingly, the application is incurably defective and ought to be struck out or dismissed with costs. 8. A cursory look at the Application reveals that there is no substantive prayer requiring the determination by the Court. The application is argumentative and a regurgitation of complaints and litany of woes against the Court process. In the absence of any substantive prayer for determination, the application is incapable of enabling the Court to adjudicate upon any justiciable issue. It is not clear why a stay is sought, and for what other purpose. This is because it is neither a stay of execution nor a stay pending appeal. This suit having been heard and now awaiting highlighting of closing submissions, it is on the verge of a judgment. It is therefore unclear why the Court should stay the suit and for what purpose. 9. It is a trite principle of law that a Court does not act in vain. Under **Order 51 Rule 1 of the Civil Procedure Rules**, every application must be brought by Notice of Motion and must explicitly state the specific reliefs sought. Furthermore, as was affirmed in the persuasive authority of **SFA v AOA [2021] KEHC 8165 (KLR)**, interlocutory applications cannot stand on their own without substantive prayers for the Court to adjudicate upon. An application that merely regurgitates complaints without seeking actionable, substantive orders from the Court is fatally defective, non-justiciable, and amounts to an abuse of the court process. 10. The Application is hereby dismissed. 11. As to costs the same lie at the Court’s discretion and ordinarily follow the event. The same are awarded to the Respondents. **Determination** 12. The Court makes the following orders in relation to the Defendants’ application by way of a Notice of Motion dated 9th April, 2026: 1. *The Defendants/Applicants’ application by way of a Notice of Motion dated 9th April, 2026 is HEREBY dismissed for lack of merits.* 2. *The costs thereof are awarded to the Plaintiff/Respondent.* 13. It is so ordered. **DATED, SIGNED AND DELIVERED AT MILIMANI THIS 27TH DAY OF JULY, 2026.** **NJOROGE BENJAMIN K.** **JUDGE** **In the presence of:** Mr. Kamau for the Plaintiffs/Respondents. N/A for the Defendants/Applicants. Mr. John Paul - Court Assistant.