https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4592

Singh v Kingorani Investment Ltd (Land Case E015 of 2025) [2026] KEELC 4592 (KLR) (20 July 2026) (Ruling) Neutral citation: [2026] KEELC 4592 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Case E015 of 2025 OA Angote, J July 20, 2026 Between James Gitau Singh Plaintiff and Kingorani Investment Limited Defendant Ruling Background 1.Before this court for determination is the Defendant’s Preliminary Objection dated 16th February 2025, objecting to the competence of this suit on basis that:a.The suit is incurably defective as it fails to disclose the genesis of the dispute being ELCLC NO. E018 OF 2024 Transfleet Limited, Kingorani Investments Limited Versus Middle East Bank Kenya Limited, Garam Investments, Akber Abdullah Kassam Esmail, The Chief Land Registrar And James Gitau Singh (Interested Party) wherein Justice Mogeni by a ruling of 8th October 2024 held the Environment and Land Court lacked jurisdiction to hear the dispute between the parties over Land Reference Number 214/293, Orchard Close, Off Muthaiga Road, Muthaiga, Nairobi County and ruled jurisdiction lay with the High Court.b.The suit is Res Judicata by dint of the Ruling delivered on 8th October, 2024 by Justice Mogeni and Section 7 of the Civil Procedure Act.c.This court is expressly barred by Section 5 of the Civil Procedure Act in light of the express provisions of Section 7 of the Civil Procedure Act from entertaining this suit.d.This court lacks the jurisdiction to hear, determine or issue an injunction or orders emanating from the realization of securities whether debentures or charges or ownership of a property emanating from statutory sale and an auction from the realization of such securities as this jurisdiction lies with the High Court Commercial and Tax Division.e.The suit is also sub judice by dint of the suit before Justice Peter Mulwa in the High Court of Kenya Milimani High Court Commercial and Tax Division HCCOMM Case NO. E034 of 2024, Transfleet Limited V. Middle East Bank Kenya Limited and others in which the same issues raised in the present case are directly and substantially in issue and are up for determination by a court of competent jurisdiction being the High Court.f.Justice Mulwa on 10th February 2025 issued status quo orders which were confirmed on 12th February 2025 in the presence of the Plaintiff who is participating in the said suit as admitted in its pleadings in this suit.g.The court lacks jurisdiction and the requisite powers under Section 13(1) and (2)(a), (b), (c), (d), and (e) of the Environment and Land Court Act to recognize the Plaintiff as the registered proprietor where the legal charge, auction process is before a court of competent jurisdiction, was instituted prior to this suit and is pending determination.h.This court is expressly barred by Section 5 of the Civil Procedure Act in light of the express restrictions of Section 6 and 7 of the Civil Procedure Act from entertaining this suit.i.Without prejudice to the foregoing with respect to Section 152E of the Land Act the Plaintiff lacks the requisite capacity to institute proceedings against the Defendant which offend the provisions of the said section and the Land Act.j.The Plaintiff is expressly barred by Section 8 of the Civil Procedure Act from initiating this cause of action for the foregoing reasons.k.The entire suit is contrary to Article 40 of the Constitution of Kenya, 2010 which protects the Defendant from arbitrary deprivation of its property and as secured by Article 60 (1), (b) of the Constitution of Kenya, 2010, thus violating the Defendant's right to own and enjoy the property.l.This entire suit and the applications before this Honourable Court ought to be struck out with costs to the Defendant. Submissions 2.The objection was canvassed by way of submissions. The Defendant filed submissions on 9th October, 2025. Counsel for the Defendant submitted that this court is divested of jurisdiction as the dispute fundamentally relates to the enforcement and realization of a charge, which falls within the province of the High Court as guided by the exposition in Co-operative Bank of Kenya Limited vs Patrick Kangethe Njuguna & 5 others [2017] eKLR and Bank of Africa Kenya Limited & another vs TSS Investment Limited & 2 others [2024] KECA 410 (KLR). 3.Further, it was submitted, this matter is sub judice, as set out in Section 6 of the Civil Procedure Act on account of the existence of HCCCOM No. E034 of 2024, involving the same parties and arising from the same auction transaction of 16th January 2024, rendering the present suit incompetent. Counsel relied on the decisions in Thiba Min. Hydro Co. Ltd vs Josphat Karu Ndwiga [2013] eKLR and Kenya National Commission on Human Rights vs Attorney General & others [2020] eKLR, to support the contention that parallel proceedings before courts of competent jurisdiction ought not to be entertained. 4.More still, it was urged, the issues raised in the present suit were substantially determined in Transfleet Limited & another v Middle East Bank Kenya Limited & 3 others; Singh (Interested Party) (ELC E018 of 2024), where the court held that disputes arising from realization of securities fall outside the jurisdiction of the Environment and Land Court. 5.As such, the present suit contravenes the doctrine of res judicata as set out in Section 7 of the Civil Procedure Act and the decision in John Florence Maritime Services Limited vs Cabinet Secretary for Transport & Infrastructure [2015] eKLR. 6.In concluding, counsel submitted that the preliminary objection raises pure points of law that go to the jurisdiction of the court and accordingly urged the court to strike out the suit with costs. 7.The Plaintiff filed submissions in opposition on 22nd October, 2025. Counsel submitted that the dispute concerns trespass, eviction, mesne profits and protection of proprietary rights following the completion of a statutory sale placing the dispute within the jurisdiction of this court under Article 162(2)(b) of the Constitution, Section 13 of the Environment and Land Court Act, and Section 150 of the Land Act. 8.Counsel distinguished the present case from the decisions in Co-operative Bank of Kenya Ltd vs Patrick Kangethe Njuguna & 5 Others [2017] eKLR and Bank of Africa Kenya Ltd v TSS Investment Ltd [2024] KECA 410 (KLR) by submitting that they concerned disputes arising from legal charges and the exercise of the statutory power of sale, whereas the present dispute concerns occupation and possession of land following the completion of the sale and registration of title. 9.Counsel further submitted that the High Court in HCCOM No. E034 of 2024 re-affirmed the settled principle that upon the fall of the hammer, the chargor's equity of redemption is extinguished. Counsel relied on Sections 99(2)(c) and 99(4) of the Land Act to submit that purchasers at statutory auctions are protected and that any person aggrieved by an irregular exercise of the statutory power of sale is limited to a remedy in damages against the person exercising that power. 10.Cited in support were the decisions in Shimmers Plaza Limited vs National Bank of Kenya Ltd [2013] KECA 359 (KLR), Sema Health Products Limited vs Housing Finance Corporation & Another [2024] KECA 245 (KLR) & others. 11.According to counsel, the present suit is not barred by the doctrine of res judicata as espoused in Section 7 of the Civil Procedure Act. The Defendant's reliance on ELC No. E018 of 2024, it was submitted, is misplaced the suit having been struck out for want of jurisdiction. A suit struck out on jurisdictional grounds, it was urged, does not constitute a determination on the merits and consequently, cannot found a plea of res judicata. Reliance was placed on the decision in The Independent Electoral and Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR. 12.Further still, it was submitted, the matter directly and substantially in issue in ELC No. E018 of 2024 concerned the validity of the chargee's statutory power of sale and the propriety of the auction process, whereas the present suit concerns the Defendant's alleged trespass and unlawful occupation of land registered in the Plaintiff's name and that the parties too are not the same, the Plaintiff having participated in ELC No. E018 of 2024 merely as an interested party. In support the Court of Appeal case of Muthee (As Administrator of the Estate of Karl Jacobs Ruedin - Deceased) & 2 Others vs Alphonce Mwangemi Munga & 11 Others; Edermann Property Limited & 3 Others (Affected Party) [2024] KECA 793 (KLR) was cited. 13.Counsel maintained that the Plaintiff has from the inception of these proceedings disclosed the existence of ELC No. E018 of 2024 and the ruling striking out that suit and that in any event, the plea of res judicata has been improperly raised by way of a preliminary objection because its determination necessarily requires examination of pleadings, evidence and the previous judgments as expressed by the courts in Mwachenga vs Omondi & 3 Others (Environmental and Land Originating Summons 005 of 2023) [2025] KEELC 3260 (KLR), Henry Wanyama Khaemba vs Standard Chartered Bank Limited & Another [2014] eKLR, and Mwinzi & Another vs Kimanzi & 4 Others [2024] KEHC 9005 (KLR). 14.Relying on Gathariki vs Cheko Plot Owners Association & Another [2025] KECA 313 (KLR), counsel submitted that the doctrine of sub judice applies only where the parties, the issues in dispute and the court's jurisdiction are substantially the same. It was argued that the doctrine is inapplicable in the present case since the High Court matter concerns the lending transaction and the exercise of the statutory power of sale, whereas the present suit concerns trespass and unlawful occupation of land, matters falling within the exclusive jurisdiction of this court. Counsel further relied on Kiki Investments Ltd & 2 Others vs Insurance Regulatory Authority [2024] KЕСA 1316 (KLR) to submit that, even if the doctrine were found to apply, the proper course would be to stay the proceedings rather than dismiss the suit. 15.Finally, counsel submitted that the interim orders issued in HCCOMM Case No. E034 of 2024 no longer affect the present proceedings, having been discharged upon the dismissal of the application for injunction on 31st July 2025. 16.Vide further submissions dated 11th November, 2024, the Defendant, through counsel, submitted that the Plaintiff's contention that the issues of res judicata and sub judice cannot be determined by way of a preliminary objection is misconceived, particularly in light of the Plaintiff's own admission that both Milimani High Court Commercial and Tax Division Case No. E034 of 2024, Transfleet Limited vs Middle East Bank Kenya Limited & Others, and Milimani ELC No. E018 of 2024 Transfleet Limited, Kingorani Investments Limited Versus Middle East Bank Kenya Limited, Garam Investments, Akber Abdullah Kassam Esmail, The Chief Land Registrar And James Gitau Singh (Interested Party 17.Counsel further submitted that there is no legal requirement that a plea of res judicata must be raised by way of a formal application. It was argued that all that is required is that the relevant facts be placed before the court to enable it determine whether the doctrine applies. Reliance in this regard was placed on John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] KECA 472 (KLR). 18.On the issue of sub judice, counsel submitted that the Plaintiff had placed undue reliance on the dismissal of the interlocutory application in HCCCOM No. E034 of 2024 while failing to disclose that the substantive suit remained pending for determination. Counsel argued that the dismissal of an interlocutory application does not remove a matter from the ambit of Section 6 of the Civil Procedure Act and does not extinguish the operation of the doctrine of sub judice. 19.Counsel further submitted that the Plaintiff's insistence on prosecuting the present suit notwithstanding the admitted existence of ELC No. E018 of 2024 undermines the rationale underlying the doctrine of sub judice and the overriding objective of the Civil Procedure Act requiring disputes arising from the same subject matter to be determined in a single forum so as to achieve the timely, fair, proportionate and cost-effective resolution of disputes while avoiding unnecessary duplication of proceedings. Analysis and Determination 20.Having considered the pleadings, the issues that arise for determination are whether the Preliminary Objection is competent and if so, merited? The law with respect to preliminary objections is now well settled. Law JA in Mukisa Biscuits Manufacturing Co. Ltd. vs. West End Distributors (1969) EA 696 at 700 stated that:“…a ‘preliminary objection’ consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 21.Newbold, P further held:“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does nothing but unnecessarily increases costs and, on occasion, confuse the issues. This improper practice should stop.” 22.The Supreme Court in the case of Hassan Ali Joho & Another vs Suleiman Said Shahbal & 2 Others [2014] eKLR re-affirmed the principles as set out in the Mukhisa Case(supra) stating:“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 23.It is apparent from the foregoing that a preliminary objection should raise pure points of law, argued on the assumption that all facts pleaded by the other side are correct. However, it cannot be raised if any facts have to be ascertained from elsewhere or if the court is called upon to exercise judicial discretion. Further, it should be capable of disposing off the suit. 24.The Defendant has raised an extensive preliminary objection. In essence, however, the objection is that first, this court lacks jurisdiction to entertain the suit because the dispute arises from the realization of a legal charge and a statutory sale, matters that fall within the jurisdiction of the High Court. 25.Second, that the suit is sub judice by virtue of the pendency of Milimani HCCCOM E034 of 2024, in which substantially the same issues are said to be pending determination; third, that the suit is res judicata in light of the ruling delivered on 8th October 2024 in ELC Case No. E018 of 2024, and fourth, that the matter is in breach of Section 152E of the Land Act and contravenes the Defendants’ proprietary rights as set out in Article 40 of the Constitution. 26.Beginning with the question of jurisdiction arising from the nature of the dispute, there can be no doubt that the issue raises a pure point of law. As the Supreme Court observed in Hassan Ali Joho & Another v Suleiman Said Shahbal & 2 Others (supra), a preliminary objection properly encompasses an objection to the jurisdiction of the court. 27.The Defendant has also invoked the doctrines of sub judice and res judicata. References to Section 6 and 7 of the Civil Procedure Act reinforce the operation of the aforesaid doctrines by recognizing that a court's jurisdiction may be barred where the law precludes the institution or continuation of a suit. 28.The doctrines of sub judice and res judicata, are intended to prevent multiplicity of suits, promote finality in litigation, and preserve the integrity of the judicial process by ensuring that parties are not vexed more than once over the same subject matter. Turning first to the doctrine of sub judice, the same is codified under Section 6 of the Civil Procedure Act which provides as follows:“No Court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other Court having jurisdiction in Kenya to grant the relief claimed.” 29.This doctrine seeks to prevent courts from entertaining parallel proceedings and is intended to avert conflicting decisions by courts of competent jurisdiction over the same subject matter. On the other hand, the doctrine of res judicata is codified under Section 7 of the Civil Procedure Act, which provides:“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, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 30.The effect of the doctrine is to prohibit a court from re-opening matters that have already been conclusively determined between the same parties, or those claiming under them, by a court of competent jurisdiction. 31.As to whether the doctrines of res judicata and sub judice may properly be raised by way of a preliminary objection, this court will rely on the exposition by the Court of Appeal in John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure, Attorney General, Kenya Maritime Authority & Office de Gestion du Fret Maritime (OGEFREM) [2014] eKLR discussing the doctrine of res judicata thus:“There is no legal requirement or factual basis for the submission that the doctrine must only be invoked and or ventilated through a formal application. It can be raised through pleadings as well as by way of preliminary objection.” 32.In the present case, the court has the benefit of the pleadings and ruling in ELC Case No. E018 of 2024, Transfleet Limited & another vs Middle East Bank Kenya Limited & 5 Others; James Gitau Singh (Interested Party), upon which the Defendant's plea of res judicata is founded. The court is also privy to the pleadings in HCCOMM Case No. E034 of 2024, Transfleet Limited vs Middle East Bank Kenya Limited & Others, as adduced herein which forms the basis of the plea of sub judice. As such the court finds that the same have been properly brought as preliminary questions. 33.The Defendant has further contended that, by virtue of Section 152E of the Land Act, the Plaintiff lacks the requisite capacity to institute these proceedings. Section 152E prescribes the procedure to be followed where a proprietor seeks to evict an alleged unlawful occupier, including the issuance and service of a statutory eviction notice. 34.In the court's view, that contention does not raise a pure point of law. Whether the Plaintiff complied with those statutory requirements, including whether the requisite notice was issued, its contents, the mode of service and whether it satisfied the statutory threshold, are all matters that require the court to examine evidence. 35.Similarly, the Defendant's assertion that the suit contravenes Articles 40 and 60(1)(b) of the Constitution by arbitrarily depriving it of property does not amount to a pure question of law. Whether the institution of these proceedings infringes the Defendant's constitutional rights necessarily depends on the factual circumstances surrounding the Plaintiff's acquisition of title, the legality of the Defendant's occupation, and the respective proprietary interests asserted by the parties. Those are matters that can only be determined after the court has received and evaluated evidence and cannot properly be disposed of at the preliminary stage. 36.Turning now to the merits of the Preliminary Objection, and beginning with the question of jurisdiction, it is trite that jurisdiction is everything. This position was succinctly captured by Nyarangi, J.A. in Owners of Motor Vessel ‘Lillian S’ vs Caltex Oil (Kenya) Limited [1989] KLR 1 thus:“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction….Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.” 37.The Environment and Land Court and the High Court of Kenya are courts of equal status, albeit with different jurisdictions. Article 165(3) of the Constitution vests the High Court with unlimited original jurisdiction in both civil and criminal matters, and authority to determine whether a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed, or threatened. 38.On the other hand, the broad jurisdiction of the Environment and Land Court is donated by Article 162(2) of the Constitution of Kenya which provides that:“Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to- (b) the environment and the use and occupation of, and title to, land…” 39.Pursuant to the constitutional mandate above, Parliament enacted the Environment and Land Court Act, No 19 of 2011. At Section 13(2), the Act provides that:“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.” 40.This court is also empowered to determine claims alleging the denial, violation, or threat to the constitutional right to a clean and healthy environment under Articles 42, 69, and 70 of the Constitution. In addition, the court has the mandate to exercise appellate jurisdiction over the decisions of subordinate courts or local tribunals in respect of matters falling within the jurisdiction of the court. 41.In Republic vs Chengo & 2 others (Petition 5 of 2015) [2017] KESC 15 (KLR) (26 May 2017) (Judgment), the court, delving into the jurisdictional limits of the superior courts noted:“We therefore entirely concur with the Court of Appeal’s decision that such parity of hierarchical stature does not imply that either ELC or ELRC is the High Court or vice versa. The three are different and autonomous Courts and exercise different and distinct jurisdictions. As Article 165(5) precludes the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High court.” 42.This is the position. Despite the foregoing pronouncement, however, jurisdictional questions have continued to surface in the nature of “cross-cutting,” “cocktail,” or “mixed grill” matters. These are disputes whose subject matter overlaps the mandates of either of the three courts. 43.So how is a court to determine such a matter. Initially, there were two schools of thought within the superior courts. One school favored the ‘pre-dominant purpose test’ whereas the other school rooted for the ‘pre-dominant issue before court test’. 44.The proponents of the former include Ngugi, J (as he was then) who rendered himself in Suzanne Achieng Butler & 4 Others vs Redhill Heights Investments Limited & Another (2016) eKLR as follows:“ 23.When faced with a controversy whether a particular case is a dispute about land (which should be litigated at the ELC) or not, the Courts utilize the Pre-dominant Purpose Test: In a transaction involving both a sale of land and other services or goods, jurisdiction lies at the ELC if the transaction is predominantly for land, but the High Court has jurisdiction if the transaction is predominantly for the provision of goods, construction, or works. 24.The Court must first determine whether the pre-dominant purpose of the transaction is the sale of land or construction. Whether the High Court or the ELC has jurisdiction hinges on the predominant purpose of the transaction, that is, whether the contract primarily concerns the sale of land or, in this case, the construction of a townhouse. Ordinarily, the pleadings give the Court sufficient glimpse to examine the transaction to determine whether sale of land or other services was the predominant purpose of the contract. This test accords with what other Courts have done and therefore lends predictability to the issue.In my view, the following factors are significant in determining the nature of the contract:a.The language of the contract; b. The nature of the business of the vendor; c. If the contract is mixed, the intrinsic worth of the two parts – land acquisition and other services or provision of materials; d. The gravamen of the dispute – whether rooted in contests about ownership, deficiency in title, occupation or use of the land or whether the genesis of the dispute is something else like the quality of services offered, construction, works and so forth; and e. The remedies sought by the PlaintiffAt the same time, however, it is imperative that a Court should not approach jurisdiction in an ultra-technocratic fashion as an essentialist parsing of sticks in a bundle. Jurisdiction is a substantive standard aimed at ensuring only the right court or tribunal clothed with the legitimate mandate deals with a dispute or controversy. It is not a jurisprudential thaumatrope to keep litigants guessing to which (sic) Court their controversy belongs at the pain of having their timeously pleaded case struck out for not pigeon-holing their claim in the correct box. The correct approach to jurisdiction is one which treats the question functionally as opposed to technically; one that looks at the constitutional objectives in creating equal status Courts as opposed to engaging in an essentialist, taxonomical and categorical analysis.” 45.Munyao J, (as he then was) was for the other test. In Lydia Nyambura Mbugua vs Diamond Trust Bank Kenya Limited & Another [2018] eKLR, he expressed himself as follows:“ 25.25. ... On my part, I would modify the above test, and hold the position that what is important when determining whether the court has jurisdiction, is not so much the purpose of the transaction, but the subject matter or issue before court, for I think that the purpose of the transaction, may at times be different from the issue or subject matter before court. Let us take the transaction of a charge as an example. The predominant purpose of creating a charge is for one to be advanced some financial facilities. However, when it comes to litigation, the predominant issue may not necessary be the money, but the manner in which the chargee, is exercising its statutory power of sale. Here, I trust that you will see the distinction between the predominant purpose of the transaction and the predominant issue before court. That is why I hold the view, that in making a choice of which court to appear before, one needs to find out what the predominant issue in his case is, and not necessarily, the predominant purpose of the transaction. If the litigant’s predominant issue will touch on the use of land, or occupation of land, or a matter that affects in one or another, title to land, then such issue would fall for determination before the ELC.” 46.The Court of Appeal had an occasion to, and dealt with the issue. In Joel Kyatha Mbaluka t/a Mbaluka & Associates Advocates vs Daniel Ochieng Ogola t/a Ogola Okello & Co Advocates [2019] eKLR it held as follows:“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.” 47.Guided by the exposition by the Court of Appeal in Joel Kyatha(supra), the court will adopt the pre-dominant issue test. 48.By way of brief background, vide the Plaint dated 20th January, 2025, the Plaintiff seeks, inter alia, orders for vacant possession of L.R. No. 214/293, the suit property herein, mesne profits, damages for trespass, injunctive relief restraining the Defendant from interfering with the suit property, and ancillary orders to facilitate the Plaintiff's enjoyment of the property following its transfer into his name. 49.The gravamen of the Plaintiff’s case is that on 16th January 2024, he attended a public auction and successfully bid for the suit property at Kshs. 152,200,000. It is his case that he paid the requisite deposit of 10%, executed the memorandum of sale and was issued with a certificate of sale. 50.Following the statutory sale of the suit property, the Defendant filed ELC Case No. E018 of 2024, Transfleet Limited & another v Middle East Bank Kenya Limited & 3 Others; Singh (Interested Party) and obtained ex parte orders restraining any dealings with the property. However, by a ruling delivered on 8th October 2024, the court struck out the suit with costs for want of jurisdiction, thereby bringing the interim orders to an end. 51.Thereafter, Transfleet Limited instituted HCCOMM Case No. E034 of 2024, Transfleet Limited vs Middle East Bank Kenya Limited, Akber Abdullahi Kassam Esmail and Elizabeth Ongare. Although Transfleet Limited sought fresh injunctive orders, the High Court declined to grant them and, in those proceedings, acknowledged that the suit property had already been sold to the Plaintiff. 52.According to the Plaintiff, upon payment of the balance of the purchase price of Kshs. 136,800,000 together with the requisite stamp duty, the suit property was duly transferred and registered in his name on 5th December 2024. Thereafter, he notified the Defendant, its directors and estate agents of the transfer and demanded vacant possession, but the Defendant failed to comply. 53.Instead, it is his case that the Defendant continued to occupy the property without any lawful right by stationing guards at the entrance, advertising the houses for rent, collecting rent from tenants and denying the Plaintiff, his agents and insurance underwriters’ access to the property. According to the Plaintiff, the Defendant's continued occupation constitutes trespass, has deprived him of the use and enjoyment of his property, prevented him from insuring it and occasioned financial loss. 54.Considering the foregoing narration, it is clear that the nature of the present suit is as regards the determination and enforcement of proprietary rights arising from the Plaintiff's registered title and concern the use, occupation and possession of land. 55.The Defendant has urged the court to find that the relationship between the parties is fundamentally founded upon the charge dated 23rd June 2021, and its realization through the disputed auction conducted on 16th January 2024. Further, that the Plaintiff's attempt to enforce his alleged rights as a purchaser cannot be divorced from the pending challenge to the auction and that, for that reason, this court lacks jurisdiction to entertain the suit. 56.While it is not in dispute that the Plaintiff's title traces its origin to the exercise of the statutory power of sale, that fact, without more, does not determine the jurisdiction of the court. The proper inquiry is not the historical origin of the transaction, but the predominant issue presented for determination. Likewise, the existence of parallel proceedings challenging the statutory sale does not, of itself, convert every subsequent dispute involving the property into one concerning the realization of a security. 57.Indeed, this case can be distinguished Kinuthia vs Kanyi & another (Environment and Land Case E007 of 2023) [2024] KEELC 1625 (KLR), where the court was dealing with a mixed grill case where there was a duly registered legal charge whose legitimacy was in question and at the same time sale agreements by parties who wished to have the same completed by transfer and issuance of sub-leases. 58.Ultimately, the court is persuaded that the dispute falls squarely within the jurisdiction conferred upon this court by Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. 59.Turning next to the plea of res judicata, the doctrine is codified under Section 7 of the Civil Procedure Act. In discussing its scope and underlying rationale, the Supreme Court in John Florence Maritime Services Limited & another vs Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment) noted thus:“……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 case¾to ascertain the issues determined in the previous case, and 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. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, (2010) eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision.” 60.According to the Defendant, the present suit is barred by the doctrine of res judicata on account of the ruling delivered on 8th October, 2024 in ELC No. E018 of 2024. The court has considered the same. ELC No E018 of 2024 was instituted by Trans fleet Limited Kingorani Investments Limited as the Plaintiffs as against the Middle East Bank Kenya Limited Garam Investments Akber Abdullah Kassam Esmail, the Chief Land Registrar, Nairobi as Defendants with the Plaintiff herein as the Interested Party therein. 61.Vide that suit, the Plaintiffs sought, inter-alia, for declarations that the public auction conducted on 16th January 2024 and the resultant certificate of sale were unlawful, null and void, that the Interested Party failed to pay the requisite 10% deposit, and that the charge dated 23rd June 2021 was invalid and incapable of enforcement. They further sought orders cancelling any title issued to the Interested Party or its nominee in respect of LR Nos. 214/293, 214/260 and 214/324. 62.The Plaintiffs also sought a permanent injunction restraining the Defendants from selling, transferring, alienating or otherwise dealing with the suit properties, declarations affirming the 2nd Plaintiff's ownership and entitlement to exclusive possession thereof, injunction restraining trespass or interference with the properties, together with general damages, costs, interest and such further relief as the court deemed fit. 63.The Plaintiffs' case was that the 2nd Plaintiff is the registered proprietor of L.R. Nos. 214/293, 214/260 and 214/324, which were charged to the 1st Defendant to secure loan facilities advanced to the 1st Plaintiff. They contended that although the parties engaged in negotiations following default and substantial repayments were made, the 1st Defendant unlawfully exercised its statutory power of sale by auctioning L.R. No. 214/293 on 16th January 2024 without issuing the requisite statutory notices, conducting a proper valuation, or complying with the provisions of the Land Act and the Auctioneers Act. 64.The Plaintiffs further alleged that the auction was fraudulent, stage-managed and conducted in bad faith to favour the Interested Party, who they maintain did not comply with the conditions of sale and therefore did not acquire a valid title. 65.The 4th Defendant in ELC Case No. E018 of 2024 filed an application seeking to strike out the suit on the ground that the court lacked jurisdiction to hear and determine the matter or any of the causes of action pleaded therein. Upon considering the application, the court observed that the primary issue for determination concerned the subsistence of the legal charge and the subsequent exercise of the statutory power of sale. Consequently, the court held that the dispute fell within the jurisdiction of the High Court and, having found that it lacked jurisdiction, struck out the suit. 66.It is trite law that a suit that has been struck out or dismissed on jurisdictional grounds does not amount to a determination on the merits and cannot ground a plea of res judicata. In The Independent Electoral and Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR, the Court of Appeal emphasized that for res judicata to apply, the prior decision must have been heard and finally determined by a court competent to adjudicate the matter. Consequently, the plea of res judicata fails. 67.Moving next to sub judice, this principle as codified in Section 6 of the Civil Procedure Act prevents a court from litigating a matter in which the issue, is substantially in issue in another suit, before a competent court and between the same parties and/or their representatives. 68.Speaking to its rationale, the Supreme Court in Kenya National Commission on Human Rights vs Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties [2020] eKLR stated:“The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.” 69.The Defendant contends that the present suit is sub judice by reason of the pendency of HCCOM No. E034 of 2024. A consideration of the Amended Plaint filed therein reveals that the Plaintiffs are Transfleet Limited and Kingorani Investments Limited, while the Defendants are Middle East Bank Kenya Limited, Akber Abdullah Kassam Esmail, Elizabeth Ongare, Garam Investments, the Chief Land Registrar and James Gitau Singh, who is the Plaintiff in the present proceedings. 70.The Plaintiffs' claim therein is that the 1st Plaintiff obtained loan facilities from the 1st Defendant, which were secured, inter alia, by L.R. No. 214/293, Orchard Close, Off Muthaiga Road, Muthaiga. According to the Plaintiffs, although the loan remained outstanding, the 3rd Defendant, without prior notice, informed the 1st Plaintiff that the 1st Defendant had exercised its statutory power of sale by auctioning the suit property. 71.The Plaintiffs contend that neither the 1st Plaintiff, as the borrower, nor the 2nd Plaintiff, as the registered proprietor and chargor of the suit property, was served with any notice of the auction conducted on 16th January 2024. They further allege that the 1st and 4th Defendants jointly and severally failed to issue the requisite statutory notices of sale before the auction. In addition, they aver that no valuation of the charged property was furnished to the 1st Plaintiff prior to the sale and that the property was ultimately sold at a price below both its market value and forced sale value. 72.Among the substantive reliefs sought are declarations that the charge is invalid, that the auction and certificate of sale are unlawful, cancellation of the 6th Defendant’s title, injunctive relief restraining dealings with the suit property and various declarations arising from the banking relationship between the parties. 73.The present proceedings, on the other hand, were instituted by James Gitau Singh against Kingorani Investments Limited following the registration of the transfer in his favour on 5th December, 2024. The Plaintiff predicates his claim upon his registered proprietorship of L.R. No. 214/293 and seeks, inter alia, for vacant possession, mesne profits, damages for trespass, injunctive relief restraining continued interference with the suit property and ancillary orders to facilitate his enjoyment of the property. 74.Considering the foregoing narration, it is evident that, while the two suits arise from the same underlying transaction, namely the statutory sale of L.R. No. 214/293, they are neither between the same parties litigating under the same title nor do they present the same issues for determination. In HCCOM No. E034 of 2024, James Gitau Singh is sued in his capacity as the purchaser whose title is impugned, whereas in the present suit he is the registered proprietor seeking to vindicate his possessory rights against the Defendant. 75.Equally, the Defendant in these proceedings, Kingorani Investments Limited, appears in the High Court suit as a co-Plaintiff alongside Transfleet Limited pursuing claims against the Bank and the other Defendants arising from the lending relationship and the realization of the securities. The capacities in which the parties litigate are therefore fundamentally different. 76.More importantly, the matters directly and substantially in issue are not identical. The High Court is called upon to determine whether the charge was valid, whether the Bank lawfully exercised its statutory power of sale, whether the auction complied with the Land Act and the Auctioneers Rules, whether the Bank contravened Section 44A of the Banking Act, whether the certificate of sale and the subsequent transfer are liable to cancellation, and whether the Plaintiffs therein are entitled to damages and declaratory relief arising from those matters. 77.Conversely, the issue before this court is whether, following registration of the transfer in favour of the Plaintiff, the Defendant's continued occupation of the suit property constitutes trespass and whether the Plaintiff is entitled to the remedies flowing from his registered proprietorship. Those questions are distinct notwithstanding that they arise from the same factual matrix. This court therefore finds that the doctrine of sub judice is inapplicable to the circumstances of the present case. 78.In the end, the court finds the preliminary objection to be unmerited. The same is dismissed with costs. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 20TH JULY, 2026.O. A. ANGOTEJUDGEIn the presence ofMr. James Gitau Singh for Plaintiff/ApplicantMr. Gathu holding brief for Ms Wamithi for Defendant/Respondent.Court Assistant: Tracy