https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7052

Mungai t/a Subukia Heshima Hardware v Faulu Microfinance Bank Limited (Civil Appeal E349 of 2023) [2026] KEHC 7052 (KLR) (19 May 2026) (Judgment) Neutral citation: [2026] KEHC 7052 (KLR) Republic of Kenya In the High Court at Nakuru Civil Appeal E349 of 2023 JM Nang'ea, J May 19, 2026 Between John Muigai Mungai t/a Subukia Heshima Hardware Appellant and Faulu Microfinance Bank Limited Respondent (Being an Appeal against the Ruling and Order of the Chief Magistrate’s Court at Nakuru ( HON. Orenge K.I – PrincipaL Magistrate) issued on 8th November 2023) Judgment 1.The Appellant challenges the lower court’s Ruling dated 8th November 2023 by which the Respondents’ Preliminary Objection dated 18th July 2023 challenging the suit before that court was sustained. The Objection was based on the ground that the court lacked jurisdiction to entertain the claim on account of the matter being res judicata. The Preliminary Point was upheld with the result that the Respondent’s Application dated 11th July 2023 was dismissed with costs. In the suit instituted in the trial court, the Appellant sought to restrain the Respondent from exercising its statutory power of sale of property charged to secure a loan facility. 2.The Grounds of Appeal as per Memorandum of Appeal dated 5h December 2022 are as follows;-1.The trial court erred in fact and in law by failing to appreciate the principles of fair hearing and proceeded to dismiss the appellant application prematurely.2.The trial court erred in law and in fact by upholding the preliminary objection and terming the application by the appellant as an abuse of court process yet the appellant was seeking legitimate prayers that were never sought before.3.That the learned trial magistrate erred in the interpretation of Section 7 of the Civil Procedure Act.4.The trial court failed to appreciate the principles of fair hearing that no man should be condemned unheard and proceeded to chase the appellant from the seat of justice without allowing him to state his case.5.The trial court erred law and in fact by elevating technicalities at the expense of substantive justice. 3.The Appellants therefore pray for judgement as follows;-i.This Appeal be allowed and the Ruling of Honourable Orenge K.I. (Principal Magistrate) on 8th November 2023 be set aside in entirety.ii.That this Honourable Court be pleased to order that the application dated 11th July 2023 be reinstated and be heard on merits.iii.That this Honourable court be pleased to make such orders as it deems fit in the interest of justice.iv.The cost of this Appeal and in the Trial Court be awarded to the Appellant. Brief background to the Appeal 4.As alluded to herein, the Appellant sued the Respondent in the lower court for inter alia, a declaration that the latter’s statutory power of sale of property charged to it to secure a loan advancement had not crystalised so as to warrant sale of the charged property in a public auction as threatened. 5.The Appellant prayed for perpetual injunction restraining the Respondent from disposing of the loan security described as Title 6/591 and Subukia/Subukia Block 6/361. 6.The Respondent reacted to the suit by taking out the Preliminary Objection subject of this Appeal. 7.Learned Counsel for the parties filed written submissions on the Appeal. Appellants Submissions 8.The Appellant wanted a joint audit of the loan following serious irregularities noted in his loan account. That audit is said to have been done and it revealed massive irregularities in the management of the Appellant’s loan account. These irregularities informed filing of the Appellant’s Application dated 11/7/2023 praying for a joint audit of the loan advanced to him before the suit in the lower court could proceed to hearing. The Appellant; vide the Application dated 11/7/2023, sought among other orders an order of temporary injunction against the Respondent pending the audit. The Application provoked the Preliminary Objection pleading the defence of res judicata and a contention that the Application is an abuse of the court process. 9.In upholding the Preliminary Objection, the learned trial magistrate faulted the Appellant for filing multiple Applications, most of which sought similar reliefs. The court also opined that the Appellant ought to have at the very beginning asked for the audit, or conduct an independent audit in the alternative and if disputed the court itself could order such audit. 10.The Appellant submits that there is no basis for the res judicata finding since it was not shown that he had asked for an audit before the Application dated 11/7/2023. Besides, it is contended that this is a contested matter of fact and therefore the Preliminary Objection is not based on a pure point of law. 11.Section 7 of the Civil Procedure Act (Res judicata rule) not infringed in the circumstances, according to Counsel. The statutory provision is amplified by various decisions e.g. Kenya Commercial Bank Limited & Another v Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021] KESC 39 (KLR) (CIV) (6 August 2021) (Judgement) inter alia. 12.The court is told that there is need to peruse the entire record of the previous proceedings to satisfy itself on relevant facts, which the trial court did not do. The Appellant therefore complains that his right to be heard guaranteed by Article 50(1) of the Constitution was infringed, [( see Evans Odhiambo Kidero & 4 Others v Ferdinand Ndung’u Waititu & 4 Others Petition 18 of 2014 (consolidated with petition 20 of 2014 (2014) eKLR]. 13.The famous of Mukisa Biscuits Manufacturing Company Limited v West End Distributors Ltd. (1969)] EA696 is also relied upon as the authority for definition of a pure point of law that is pleaded in a Preliminary Objection. Respondent’s Submissions 14.It is submitted that the Preliminary Objection was properly upheld to avoid abuse of the court process by re-opening of settled matters. 15.Abuse of court process entails “employment of judicial process in bad faith and for purposes other than those it is intended… a misuse of the court process”, [(see Muchanga Investments Limited v Safaris Unlimited (Africa) Limited & 2 Others [2009] eKLR cited in support of this submission)}. 16.The court is also asked to continue to uphold the legal principle that there should be an end to litigation and one should not be vexed twice in the same cause, {(see John Florence Services Limited v Cabinet Secretaty Transport & Infrastructure & 3 Others (2015) eKLR (Court of Appeal) adverted to in Counsel submissions.)} 17.The Respondent insists in the circumstances that Appellant was accorded a fair through submissions and so no prejudice was occasioned. Guiding Principles 18.This being a first appeal I am required to reconsider the material placed before the lower court, evaluate it and draw my own conclusions regarding both matters of fact and law{(see Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123 }. The Court of Appeal for East Africa in Peters v Sunday Post Limited [1958] EA 424 underscored the same principle delivering itself thus:“i.First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;ii.In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; andiii.It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.” Brief Analysis and Determination 19.The singular issue for determination in this Appeal is whether Appellant’s Application dated 11/7/2023 was res judicata as to justify its dismissal as the trial court did. As held in the case of Uhuru Highway Development supra the principle of Res Judicata also applies to Applications. It is embodied in Section 7 of the Civil Procedure Act which provides that no court should try an action relating to a matter that was directly and substantially in issue in a previously determined matter involving the same parties litigating under the same title, or other parties claiming under them. 20.Jurisdiction is central to the court’s authority to determine a dispute before it ( see the popular case Owners of Motor Vessel (“Lillian S” v Caltex Oil Kenya) Limited (1989) KLR 1. It is also trite law that a Preliminary Point can only be properly taken up if relevant facts are not in dispute. If certain facts can only be established by adduction of further evidence then what is raised is not a pure point of law that may dispose of a matter at once (also see the famous decision in Mukisa Biscuits Manufacturing Co. v. West End Distributors case). Determination 21.To determine whether the matter in issue is res judicata, the court requires to interrogate the record in which the previous matter was dealt with which exercise involves gathering evidence to inform the court’s decision. The Objection is not therefore a pure legal point. 22.The trial court in its impugned Ruling does not specify which Application similar to the one dated 11/7/2023 had been previously determined. The Record of Appeal at pages 5 to 10 contains only one other Application dated 6/11/2019. It is not, however, shown that this Application had been heard and determined. The Application sought injunctive relief to restrain the Respondent from auctioning the charged property pending disposal of the suit before the lower court. On the other hand the Application dated 11/7/2023 also seeks the same injunction order and an additional order for a joint forensic audit of the Appellant’s loan account. 23.Clearly, the Application dated 11/7/2023 is not therefore res judicata. It could only be said to be res subjudice in so far as the prayer for temporary injunction sought in the two Applications had not been adjudicated. 24.The Appeal is allowed with costs. The lower court’s order upholding the Preliminary Objection is set aside and substituted with this court’s order striking out the Preliminary Objection and reinstating the Application dated 11/7/2023. 25.The suit shall be heard and determined by another judicial officer with jurisdiction, other than Hon. K. I. Orenge (Principal Magistrate). 26.Judgement accordingly. J. M. NANG’EA, JUDGE.JUDGEMENT DELIVERED VIRTUALLY THIS 19TH DAY OF MAY, 2026.In the presence of:Mr. Wafula Advocate for the Appellant.Respondent, Absent.Court Assistant (Jeniffer).J. M. NANG’EA, JUDGE.