https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4402

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ISIOLO** **ELC CASE NUMBER E002 0F 2026** AGNES KATHINJA ………………………………………………PLAINTIFF VERSUS NORTHERN GALAXY HOTEL LIMITED ………..……….1ST DEFENDANT GUARDIAN BANK LIMITED …………………………….2ND DEFENDANT **RULING** 1. Before me is the Notice of Motion Application dated the 17.03.2026, brought pursuant to the provisions of **Sections 1A, 1B, 3A and 63 [e] of the Civil Procedure Act, Chapter 21 Laws of Kenya; Sections 68 of the Land Registration Act, 2012; Section 780 of the Companies Act, 2015; and Order 40 Rules 1 and 2 of the Civil Procedure Rules, 2010**. The reliefs sought *vide* the application are: 2. ***…………………………………………………………spent.*** 3. ***…………………………………………………………spent.*** 4. ***That pending interpartes hearing of the application, an order of temporary injunction do issue, restraining the defendants, whether by themselves, or their authorized agents, auctioneers and or any of them or otherwise form offering for sale, either by public auction or private treaty of that parcel of and namely LR. Isiolo Township/block V/4.*** 5. ***That pending the Hearing and determination of the suit an order of inhibition do issue, restricting any kind of dealings whatsoever with L. R No. Isiolo Township/Block V/4.*** 6. ***That this Honourable court be please to grant an order of injunction restraining the defendants whether by themselves, or their authorized agents, auctioneers and or any of them or otherwise from offering for sale, either by public auction or private treaty of that parcel of land namely LR. No. Isiolo Township/Block V/4 pending the hearing and determination of the main suit.*** 7. ***That cost of the Application be provided for.*** 8. The subject application is premised on various grounds. The grounds are: The Applicant herein was issued with a lease over and in respect of LR No. Isiolo Township/Block V/4 [hereinafter referred to as the suit property]; the lease was thereafter registered; the Applicant was issued with a certificate of lease; the Applicant become the original owner of the suit property; the Applicant has never parted ways with possession of the suit property; the Applicant did not transfer the suit property to the 1st defendant; and the transfer and registration of the suit property in the name of the 1st Defendant was fraudulent and illegal. 9. Additionally, it has been posited thus: The Applicant and her son [Erick Kimathi] founded the 1st Defendant company; the Applicant owns 50% shareholding in the company; the Applicant hosted the 1st Defendant on the suit property; the Applicant did not transfer the suit property to the 1st defendant; and the Applicant did not authorize the charge of the suit property in favour of the 2nd defendant. 1. Furthermore, the Applicant has contended thus: On or about the 02.03.2026, same witnessed strange people visiting the suit property; the Applicant became concerned; the Applicant inquired the purpose why the suit property was being visited/inspected; the Applicant discovered that the strange persons were prospective buyers; the Applicant thereafter sought documentation from the land registry; the Applicant procured a copy of the certificate of search; the Applicant discovered that the suit property was transferred to and registered in the name of the 1st defendant; and the Applicant also established that the suit property had been charged to the 2nd defendant. 2. The Applicant has further averred that the threatened sale and alienation of the suit property shall defeat her rights to suit property. In addition, the Applicant has posited that the transactions underpinning the transfer of the suit property to the 1st defendant; and the subsequent charge to the 2nd Defendant are fraudulent. Moreover, it has been posited that the threatened sale shall violates the Applicant’s rights in terms of **Article 40 of the Constitution, 2010.** 3. The instant application is supported by two [2] sets of affidavits. The Applicant has sworn the supporting affidavit and a supplementary affidavit. The Applicant [who is deponent of the twin affidavits] has reiterated the grounds contained in the body of the application. In addition, the Applicant has annexed various documents inter alia: copy of the certificate of lease; copy of green card; copy of various utility bills; copy of the letter addressed to the Land Registrar – Isiolo /Marsabit; and copy of CR 12 in respect of the directorship of the 1st Defendant company. 4. The 1st Defendant was duly served with the application. The 1st Defendant sought various indulgence from the court with a view to filing a response to the application. The request/indulgence were duly granted. However, the 1st Defendant failed to file any response to the application. 5. The 2nd Defendant filed a response to the application. The response was *vide* a replying affidavit sworn by one Antony Mwangi. The replying affidavit is sworn on the 09.06.2026. The deponent of the replying affidavit has adverted to and highlighted various issues. The issues include: The suit property was indeed registered in the name of the Applicant; the 1st Defendant sought financial accommodation/indulgence from the 2nd defendant; the 2nd Defendant agreed to offer financial accommodation/baking facility; the 2nd Defendant generated a letter of offer; the letter of offer was dated 21.03.2013; the letter of offer extended a banking facility of Kshs. 28,000,000/= only to the 1st defendant; the letter of offer contained various terms/conditions; the terms included the transfer of the suit property from the Applicant to the 1st defendant; the suit property was thereafter to be charged as security for the banking facility/financial accommodation; and the letter of offer was duly executed by the Applicant herein. 6. Moreover, the deponent of the replying affidavit has averred thus: the Applicant herein understood the terms and conditions of the letter of offer; the letter of offer was thereafter acted upon; the suit property was transferred to and registered in the name of the 1st defendant; the Applicant herein executed the transfer instrument; the Applicant herein availed her passport size photographs; the Applicant appeared before an advocate who attested the execution of the transfer instrument; the suit property was thereafter registered in the name of the 1st defendant; the certificate of lease was duly issued; and the suit property was lawfully charged to and in favour of the 2nd defendant. 7. Other than the foregoing, the deponent of the replying affidavit has posited thus: the Applicant herein has been privy to and knowledgeable of the charge; the Applicant is aware of the outstanding debts; the Applicant in her capacity as a Director was also involved in the restructure of the banking facility; the Applicant has been engaged in various meetings as pertains to the debt in question; the Applicant has also exchanged various correspondence as pertains to the matter with the 2nd defendant. 8. The deponent of the replying affidavit has ventured forward and posited thus: The 1st Defendant sought to file a suit as against the 2nd defendant; the 1st Defendant convened a board of directors meeting; the meeting was held on the 12.09.2024; the meeting touched on the filing of a suit against the 2nd defendant; the suit was subsequently filed; the suit was Nairobi HCC Commercial Case number E550 of 2024 ; the suit touched on and concerned the intended sale of inter alia the suit property; the 1st Defendant also filed an application for temporary injunction; the application under reference was heard and dismissed; the 1st Defendant felt aggrieved ; the 1st Defendant moved to the Court of Appeal; the 1st Defendant sought orders of injunction *vide* civil appeal [application]number E174 of 2025; the application for temporary injunction was dismissed; and the current suit is an abuse of the due process of the court. 9. Premised on the foregoing assertions, the deponent of the replying affidavit has averred that the Applicant was privy to the transactions and dealings touching on and concerning the suit property. In particular, it has been asserted that the transfer of the suit property to the 1st Defendant was known to the Applicant; and the assertions of fraud are misconceived; and founded on falsehoods. 10. The subject application came up for directions on the 11.06.2026, whereupon the advocate for the parties sought directions as pertains to the hearing and disposal of the application. In addition, the advocates for the parties proposed to canvass the application by way of written submissions. 11. The court proceeded to and issued directions as pertains to the disposal of the application. The court directed thus: the application shall be disposed of vide written submissions; the Applicant was to file and serve submissions within 14 days; the Respondents were to file and serve within 14 days from the date of service; and the Applicant was at liberty to file and serve rejoinder submissions [if any] within 7 days of service. 12. The Applicant filed written submissions dated the 11.06.2026. The Applicant has adopted the grounds at the foot of the application; reiterated the contents of the supporting affidavit and the supplementary affidavit; and thereafter highlighted four [4] key issues. The issues are: The transfer of the suit property to and in favour of the 1st Defendant was fraudulent and illegal; the charge of the suit property in favour of the 2nd Defendant was done without the knowledge of the Applicant; the subject suit and by extension the application raise arguable issues; the Applicant has met and established the requisite conditions to warrant the grant of the orders of temporary injunction. 13. The 1st Defendant did not file any response to the application. Similarly, the 1st Defendant did not file any submissions. Suffice it to state that the 1st Respondent therefore left the issue to lie. 1. The 2nd Defendant filed written submissions dated the 26.06.2026. The 2nd Defendant has raised a plethora of issues. The issues are: The verifying affidavit attached to the plaint and the supporting affidavit attached the application contravene the provisions of ***Sections 4 of the Oath and Statutory Declaration Act;*** the prayer for temporary injunction at the foot of the Applicant has been sought in vacuum; the Applicant herein is devoid of capacity to bring the suit challenging the legality of the charge; the current application constitute[s] an abuse of the due process of the court; the issues raised by the Applicant have been determined by both the High Court and the Court of Appeal; the subject application is prohibited by the doctrine of res judicata; the Applicant has neither established nor satisfied the requisite conditions to warrant the grant of the orders of temporary injunction; and the 2nd Defendant is lawfully entitled to exercise its statutory power of sale. 2. To buttress the foregoing submissions, learned counsel for the 2nd Defendant has referenced various decisions. The decisions cited include: Kamoro versus Waweru [2025] **KEECL 4813; Mary Ngaru versus Family Bank Limited and 2 others [2014] KEHC; Kihara versus Barclays Bank of Kenya [2001] 2 EA; Bank of Africa Limited and another versus TSS Investments Limited and 2 others [2024] KECA; Gulf African Bank Limited versus Mohammed Sheikh Hussein [2018] KECA and Rubis Energy Kenya Limited versus SAS Africa General Trading Limited and 2 others [2021] KEELC 4452**, respectively. 3. Having reviewed the instant application; the supporting affidavit; the supplementary affidavit; the replying affidavit in opposition thereto; and upon consideration of the written submissions filed by/on behalf of the respective parties, four [4] key issues emerge for consideration and determination. The issues are: Whether the Plaintiff’s suit and by extension the application are valid/competent; whether the issues raised *vide* the subject matter are res judicata; whether the subject matter constitute[s] an abuse of the due process of the court; and whether the Applicant has established the threshold for the grant of orders of temporary injunction or otherwise. 4. Regarding the first issue, namely; Whether the suit and by extension the application are valid /competent. To begin with, the subject suit was filed by the law firm of **M/s. Karanja W and Associates; P O Box 2436-60200 Meru.** Insofar as the suit was filed through the said law firm, it is common ground that any advocate or commissioner of oaths working in; or associated with the said firm could not purport to administer oath on any affidavit to be used in respect of the said matter. 5. In particular, the provisions of **Section 4 of the Oaths and Statutory Declaration act, Chapter 15, Laws of Kenya** prohibits self-administration of oaths. The section stimulates thus: **4 Powers of commissioner for oaths** **(1)A commissioner for oaths may, by virtue of his commission, in any part of Kenya, administer any oath or take any affidavit for the purpose of any court or matter in Kenya, including matters ecclesiastical and matters relating to the registration of any instrument, whether under an Act or otherwise, and take any bail or recognizance in or for the purpose of any civil proceeding in the High Court or any subordinate court:** **Provided that a commissioner for oaths shall not exercise any of the powers given by this section in any proceeding or matter in which he is the advocate for any of the parties to the proceeding or concerned in the matter, or clerk to any such advocate, or in which he is interested.** **(2)A commissioner for oaths shall, in the exercise of any of the powers mentioned in subsection (1), be entitled to charge and be paid such fees as may be authorized by any rules of court for the time being.** 1. Despite the clear and apt provisions of **Section 4 of the Oath and Statutory Declaration Act, [supra]**, which prohibits a commissioner of oaths from administering of oaths in respect of any matter wherein same is concerned, one **Mr. Karanja W, of Post office Box 2436-60200, Meru** – proceeded to and commissioned the verifying affidavit attached to plaint; and the supporting affidavit attached to the application. 2. The commissioning of the verifying affidavit and the supporting affidavit by the advocate, who is on record for the plaintiff herein constitute[s] a serious and grave violation of **Section 4 of the Oaths and Statutory Declaration Act [*Supra*]*.*** The impugned execution/administration of oaths, is not only irregular, but illegal. The act of commissioning own documents renders the impugned documents invalid. Such a document [read affidavit] cannot be used or deployed to underpin legal proceedings. 3. Additionally, I wish to state that the violation of S**ection 4 of the Oath and Declaration Act [*supra*],** which is a substantive provision of the law, cannot be wished away on the basis of [sic] procedural technicality. For good measure, the provision of Section 4 [*supra*] goes to the root of the impugned documents and same is a matter of substance. I am afraid that the provisions of **Article 159 [2] [d] of the Constitution, 2010**, cannot be called in aid, to remedy the illegality. In any event, there is no gainsaying that the provisions of the constitution cannot be relied upon to defeat clear provisions of the statute and in this case, the provisions of **Section 4 of the Oaths and Statutory Declaration Act.** 4. The importance of complying with and adhering with the provisions of the law and more so, the ones which are peremptory in nature was highlighted in the case of **Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] KECA 445 (KLR**). The Court of Appeal stated as hereunder: ***In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the Constitution and the overriding objective principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and section 3A and 3B of the Appellate Jurisdiction Act (Cap 9). Procedure is also a handmaiden of just determination of cases.*** 1. Confronted with the reality that same had violated the provisions of section 4 of the oaths and statutory declaration act, learned counsel for the Applicant contended that the commissioner of oaths/practitioner, is separate from the law firm in which same practices. In addition, learned counsel posited that the commissioner of oaths who administered the oath to the Applicant is a separate and distinct legal person. Further, counsel submitted that the said commissioner of oaths does not share in the profits of the law firm retained by the Applicant. 2. I am afraid that the submissions by and on behalf of learned counsel, are being made without any factual anchorage or foundation. Moreover, I am alive to the fact that submissions cannot take the place of evidence. For good measure, no affidavit evidence was placed before the court to show that Mr. Karanja W, who administered the oath, is separate and distinct from Mr. Karanja W, who is the proprietor of the law firm. 3. Furthermore, the submissions by learned counsel captured at the foot of paragraphs 20, 21 and 22 of the written submissions dated 11.06.2026, reeks of semantics. Simply put, learned counsel for the Applicant cannot wriggle out of the clear provision of the law. Suffice it to state that advocates must learn to abide by and comply with the provisions of the law. 4. Having found that the verifying affidavit and the supporting affidavit, were commissioned in contravention of section 4 of the oaths and statutory declaration act [supra], the question that does arise is whether the impugned affidavit can be left *in situ.* To my mind, the impugned affidavit are nullities and hence same must be expunged from the record of the court. I wish to add that the record of the court must remain solemn and the only way to maintain such solemnity, is to rid same of illegalities, like the ones, which have been adverted to hereinbefore. 5. The consequential question is what is the legal implication of the expunction of the verifying affidavit and the supporting affidavit, respectively from the record. There is no gainsaying that the expunction of the named documents, would leave the suit and the application incompetent. Simply put, the suit by the Applicant would be devoid of a verifying affidavit in terms of **Order 4 Rule 1 of the Civil Procedure Rules, 2010.** 6. In the absence of a verifying affidavit, the plaintiffs suit becomes incompetent and invalid, and thus same courts striking out. Suffice it to state that a verifying affidavit plays a critical role in litigation. The importance of a verifying affidavit cannot be over emphasized. 7. In the case of **Research International East Africa Ltd V Julius Arisi & 213 Others [2007] Keca 506 (KLR),** the Court of Appeal considered the importance of a verifying affidavit. The court stated as hereunder**:** “***Having come to the conclusion that the verifying affidavit of Julius Arisi was filed without authority of the other 213 plaintiffs, it follows that the other 213 Respondents have not complied with mandatory provisions of rule 1 (2) of Order VII Civil Procedure Rules and that their suit was liable to be struck out by the superior court under rule 1 (3) of Order VII CP Rules.*** **The superior court however had a discretion. It had jurisdiction instead of striking out the plaint to make any other appropriate orders such as giving the plaintiffs another opportunity to comply with the rule.”** 1. With respect to the supporting affidavit attached to the application, I wish to observe that the striking out thereof, would leave the application bare and devoid of evidential standing. Moreover, the Supplementary affidavit would equally become inconsequently, insofar as the same was only supplementing the main affidavit. In the absence of the evidence, the application dated the 17.03.2026, is rendered incompetent and thus invalid. 2. In view of the foregoing, and taking into account the importance of **Section 4 of the Oaths and Statutory Declaration Act, Chapter 15, Laws of Kenya,** I find and hold that the suit and the application are incompetent and invalid. 3. I now wish to turn to the second issue, namely; whether the subject suit and the issues raised vide the application are res judicata. To begin with, it is worthy to recall and reiterate that the Applicant herein is a director and share holder in the 1st Defendant company. According to the Applicant, same is a 50% shareholder in the company. 4. In addition, there is evidence that the Applicant herein, in her capacity as a director of the 1st defendant, participated in a board meeting held on the 12.09.2024 and wherein the 1st Defendant authorized and sanctioned the filing of a suit by/on behalf of the 1st defendant. Suffice it to state that a suit was indeed filed on behalf of inter alia, the 1st Defendant and wherein the issue of the charge in favour of the 2nd defendant; and the intended exercise of statutory power of sale was canvassed. 5. Furthermore, it is not lost on me that the 1st Defendant herein, after filing the suit, namely; Nairobi HCC Commercial case number E550 of 2024, proceeded to and filed an application for temporary injunction. The said application was heard and disposed of. The issues being raised at the foot of the current application replicates the ones that were canvassed in the previous application. 6. It is also common ground that after the application before the High Court was heard and dismissed, the 1st Defendant herein, with the knowledge of and participation by the Applicant, who is a director thereof , proceeded to and filed an application before the Court of Appeal. The application before the Court of Appeal was assigned number Civil Appeal [application] number E174 of 2025. 7. For the avoidance of doubt, the application before the Court of Appeal [details in terms of the preceding paragraphs] was heard and disposed of vide ruling delivered on the 27.02.2026. The application was dismissed. 8. Despite the foregoing, the Applicant herein has now come to this court, purporting to exercise her personal rights, as opposed to those of the 1st Defendant and same seeks to procure orders of temporary injunction to avert the sale of the suit property. The Applicant is now contending that she was not privy to the transfer of the suit property to the 1st defendant; and the subsequent charge of the suit property to the 2nd defendant. 9. I will be dealing with the bona fides of the said assertions shortly. However, at this juncture it is important to underscore that the issues, which the Applicant is now raising vide the instant suit, are issues that ought to have been canvassed in the previous suit. It is immaterial that the issues were not raised therein. The doctrine of constructive res judicata does apply. [See **Section 7 [4] of the Civil Procedure Act, Chapter 21 Laws of Kenya.**]. 10. The scope of the doctrine of res judicata was highlighted in the case of **Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd [2017] KECA 98 (KLR). The Court of Appeal stated thus:** ***“To our mind, there is no better case in which the Court ought to invoke the doctrine of constructive res judicata than in the present appeals. Constructive res judicata is broader and encompasses all the issues in a dispute which, a party employing due diligence ought to have raised for consideration. To allow Benjoh to relitigate, re-agitate and re-canvass any issues, no matter how crafted or the legal ingenuity and sophistry employed and in spite of the plethora of cases already conclusively determined by competent courts on the question of accounts, would be tantamount to throwing mud on the doctrine of res judicata and allow a travesty of justice to be committed to a party. The specific issue the Respondent raises of rendering true and proper accounts to a customer’s accounts, has been or could have been raised before the High Court in the previous suits.”*** 1. It is also important to take cognizance of the decision/holding in the case **Bank of Africa Kenya Limited & another v TSS Investment Limited & 2 others [2024] KECA 410 (KLR),** where the Court of Appeal was faced with a similar situation like the one beforehand. The Court of Appeal observed that the doctrine of Res Judicata would apply even if the claimant was not party to the previous suit, so long as the cause of action remains the same and had been determined by the previous court of competent jurisdiction. The Court addressed, what is generally referred to as *‘cause of action Res Judicata’.* 2. The court stated thus: ***30. On the 3rd issue as to whether the issues in contention in the appeal before us were res judicata, it is noteworthy that the 1st and 2nd Respondents were not the first or the only ones to resist the 1st appellant’s move to realise its security. As we will shortly see, others claiming under the same title had gone before them albeit unsuccessfully over the same subject matter and cause of action in the High Court, the ELC, and on appeal to this court.*** ***31.The decisive elements to be established in determination of whether an issue raised in a particular suit is res judicata were outlined in***[***John Florence Maritime Services Limited & another v Cabinet Secretary Transport & Infrastructure & 3 others***](https://kenyalaw.org/akn/ke/judgment/kesc/2021/39)***[2021] KESC 39 (KLR) where the Supreme Court held:“*** ***58.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 case to 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 ….*** ***59.For res judicata to be invoked in a civil matter the following elements must be demonstrated:a.There is a former judgmentor order which was final;b.The judgmentor order was on merit;c.The judgmentor order was rendered by a court having jurisdiction over the subject matter and the parties; andd.There must be between the first and the second action identical parties, subject matter and cause of action.(See Uhuru Highway Developers Limited v Central Bank of Kenya & others [1999] eKLR and See the decision of the Court of Appeal in Nicholas Njeru v Attorney General & 8 others Civil Appeal 110 of 2011 (2013) eKLR)*** ***………………………………………….*** ***40. The multiple proceedings instituted by individuals and corporate entities not party to the charge over the suit properties to which only the 1st appellant and the 3rd Respondent were privy clearly demonstrate the spirited albeit unmerited attempts by third parties to obstruct the 1st appellant’s rightful exercise of its statutory power of sale. The multiplicity of suits, the motions for injunctive relief, and the ensuing appeals determined in favour of the 1st appellant go a long way in demonstrating that the issues in contention in the Respondents’ suit were res judicata, having been determined with finality on their merits by courts of competent jurisdiction, over the same subject matter, and the same cause of action. To our mind, it matters not that the 1st and 2nd Respondents were not party to the suits aforesaid. The fact that those suits and motions raised issues similar to those in contention between the appellants and the Respondents herein, and over the same subject matter, and on the same cause of action, rendered them res judicata.”*** 1. I do not wish to belabor the point. However, there is no gainsaying that the substratum of this suit and the application, replicate the issues that were canvassed in the previous suit, albeit on behalf of the 1st defendant. The nexus between the current Applicant and the current 1st Defendant [who was a party in the previous suits] cannot be gainsaid. 2. I now wish to turn to the 3rd issue, namely; abuse of the due process of the court. What constitutes abuse of the due process of the court has been highlighted in various decisions. In the case of **Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] KEHC 6100 (KLR), the court [**per Mativo- Judge , as he then was] stated as hereunder: ***26. It’s settled law that a litigant has no right to purse*paripasua*two processes which will have the same effect in two courts either at the same time or at different times with a view of obtaining victory in one of the process or in both. Litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different position clearly, plainly and without tricks.*** ***27. It is not open for the Applicant herein to institute these Judicial Review proceedings after losing the Petition challenging the same criminal trial. The two processes are in law not available to the Applicant. He ought to have appealed against the above mentioned decision if he was dissatisfied. The Applicant cannot lawfully file this Judicial Review proceedings and seek similar reliefs relying on substantially the same grounds as the Petition referred to above. The pursuit of the second process, that is this Judicial Review Application constitutes and amounts to abuse of court/legal process."******[[17]](https://kenyalaw.org/akn/ke/judgment/kehc/2018/6100/eng%402018-06-21%22%20%5Cl%20%22_ftn17%22%20%5Co%20%22)*** ***28. Multiplicity of actions on the same matter between the same parties even where there exist a right to bring the action is regarded as an abuse.******[[18]](https://kenyalaw.org/akn/ke/judgment/kehc/2018/6100/eng%402018-06-21%22%20%5Cl%20%22_ftn18%22%20%5Co%20%22) The abuse lies in the multiplicity and manner of the exercise of the right rather than exercise of right*per se*. The abuse consists in the intention, purpose and aim of person exercising the right, to harass, irritate, and annoy the adversary and interface with the administration of justice.******[[19]](https://kenyalaw.org/akn/ke/judgment/kehc/2018/6100/eng%402018-06-21%22%20%5Cl%20%22_ftn19%22%20%5Co%20%22)I find no difficulty in concluding that this Judicial Review Application is based on similar grounds as the Petition referred to above.*** ***29. This obstacle to the efficient administration of justice is not immovable. Courts need not and should not wait for lawyers and litigants to initiate proceedings where there is substantial reason to believe that the processes of the court have been abused. Tampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which such abuse cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpless victims of deception, fraud and blatant abuse of judicial processes.*** ***30. All courts have an inherent or implied jurisdiction to prevent their processes from being used as an instrument of oppression. Courts are able to modify their procedures to avoid such prejudice and take any steps that are necessary to prevent an abuse of process.******[[20]](https://kenyalaw.org/akn/ke/judgment/kehc/2018/6100/eng%402018-06-21%22%20%5Cl%20%22_ftn20%22%20%5Co%20%22)The concept of abuse of process extends to the use of the court’s processes in a way that is inconsistent with two fundamental requirements arising in Court proceedings. These are,*first,*that the Court protect its ability to function as a Court of law by ensuring that its processes are used fairly by State and citizen alike. The*second*is that unless the Court protects its ability to function in that way, its failure will lead to an erosion of public confidence. The court’s processes will be seen as lending themselves to oppression and injustice.******[[21]](https://kenyalaw.org/akn/ke/judgment/kehc/2018/6100/eng%402018-06-21%22%20%5Cl%20%22_ftn21%22%20%5Co%20%22)*** ***31. The concept of abuse of process overlaps with the obligation of a Court to provide a fair trial. The content of these obligations cannot, however, be stated exhaustively or analytically. These obligations rely on intuitive judgments formed by experience.******[[22]](https://kenyalaw.org/akn/ke/judgment/kehc/2018/6100/eng%402018-06-21%22%20%5Cl%20%22_ftn22%22%20%5Co%20%22)The obligation on a court is to provide a fair trial*in accordance with law*. The due administration of justice is a continuous process. Courts must be vigilant to ensure that public confidence in the administration of justice is maintained.******[[23]](https://kenyalaw.org/akn/ke/judgment/kehc/2018/6100/eng%402018-06-21%22%20%5Cl%20%22_ftn23%22%20%5Co%20%22)*** 1. The Supreme Court has also added its voice to the concept of abuse of the due process of the court. In the case of**Rutongot Farm Ltd v Kenya Forest Service & 3 others [2018] KESC 27 (KLR), the apex court stated thus:** “***The concept of “abuse of the process of the Court” bears no fixed meaning, but has to do with the motives behind the guilty party’s actions; and with a perceived attempt to manoeuvre the Court’s jurisdiction in a manner incompatible with the goals of justice. The bottom line in a case of abuse of Court process is that, it “appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak to be beyond redemption…”….Beyond that threshold, lies an unlimited range of conduct by a party that may more clearly point to an instance of abuse of Court process.”*** 1. Back to the facts of this matter. The Applicant herein, who is a director of the 1st defendant, knows that the 1st Defendant and a sister company, namely; Executive Super Rides Limited, filed an application before the Court of Appeal seeking an order of injunction to restrain the 2nd Defendant from exercising its statutory power of sale over the suit property. In addition, the Applicant is aware that the application was heard and dismissed by the Court of Appeal. 2. In spite of the decision of the Court of Appeal, which is a superior court to this court, the Applicant is now here seeking an order of injunction to restrain the exercise of the statutory power of sale by the 2nd defendant. To my mind, the Applicant is seeking to use this court to negate; defeat; circumvent; and in-subordinate the Court of Appeal. 3. Can this court do what the Applicant is seeking? I beg to point out that where a party has sought orders before the Court of Appeal and failed, same cannot reinvent self and approach a lower superior court, to defeat the Court of Appeal. Such kind of an endeavor would breed anarchy in the corridors of justice. In addition, such invitation will bring to disrepute the doctrine of precedents [*stare decisis*]. 4. At this juncture I wish to reference the holding in the case of **Kenya Hotel Properties Limited v Attorney General & 5 others [2022] KESC 62 (KLR).** The Supreme Court stated as hereunder: ***“As was thus rightly noted by the High Court and the Court of Appeal, the rule of thumb is that superior courts cannot grant orders to reopen or review decisions of their peers of equal and competent jurisdiction much less those court higher than themselves. Again, we take cognizance of our finding in the***[***Samuel Kamau Macharia***](http://kenyalaw.org/caselaw/cases/view/82994)***case where we held that:“A court jurisdiction flows from either the***[***Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the***[***Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second Respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings. This court dealt with the question of jurisdiction extensively in, In the Matter of the Interim Independent Electoral Commission (Applicant), Constitutional Application Number 2 of 2011. Where the***[***Constitution***](https://kenyalaw.org/akn/ke/act/2010/constitution)***exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.” (emphasis supplied***)” 1. I do not wish to belabor the point. All I wish to state is to the effect that the instant suit and by extension the application, constitutes a subtle invitation, to bring the Court of Appeal to disrepute. The suit, certainly amounts to an abuse of the due process of the court. 2. I now wish to deal with the last issue. The issue touches on and concerns whether the Applicant herein has established the conditions to warrant the grant of an order of temporary injunction or otherwise. It is common ground that an Applicant seeking to partake of an order of temporary injunction, must establish inter alia; prima facie case; and demonstrate a likelihood of irreparable loss occurring, unless the orders sought are granted. 3. What constitutes a prima facie case was highlighted in the case of **Mrao Ltd v First American Bank of Kenya Ltd & 2 others,** wherein the Court of Appeal stated as hereunder: **“4*. A prima facie case in a civil application included but was not confined to a genuine and arguable case. It was a case which, on the material presented to the court, a tribunal properly directing itself would conclude that there existed a right which had apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”[Emphasis added].*** 1. The Applicant herein contends that the transfer and registration of the suit property in the name of the 1st Defendant was undertaken without her knowledge and involvement. In addition, the Applicant has contended that the transfer in question was fraudulent and illegal. 2. However, it is not lost on me that the 2nd Defendant has placed before this court a copy of the transfer of lease, which shows that same was duly executed by the Applicant. The transfer of lease bears the Applicant signature. The signature has not been challenged. In addition, the transfer of lease also contains a passport size photograph of the Applicant. The Applicant has not denied the passport sized photograph. 1. Other than the foregoing, it is also important to point out that the Applicant, is said to have appeared before an advocate, who attested her signature and confirmed that the Applicant executed the transfer of lease voluntarily. There is no evidence that any complaint has been made against the attesting advocate, either with the Law Society of Kenya [LSK], or the Advocates Complaints Commission. 2. Be that as it may, the Applicant herein wishes to hoodwink the court to believe her assertions. Surely, courts of law cannot be moved on the basis misrepresentations and averments that border on perjury. I am afraid that the contents of the supporting affidavit by the Applicant are not only misleading but demonstrates gross dishonesty. Equity frowns upon such conduct. 3. Moreover, I wish to point out that a prima facie case cannot be established on the basis of inter alia: Misrepresentations of facts; distortion of facts; dishonesty; and perjury. I beg to draw the attention of the Applicant and her counsel to the provision of **Sections 113 and 114 of the Penal Code, Chapter 63 Laws of Kenya.** 4. I am afraid that the Applicant herein has neither established nor proven the existence of a prima facie case. In the absence of a prima facie case, this court has no business venturing forward to interrogate whether irreparable loss would arise or accrue. Suffice it to state that the conditions for the grant of an order of temporary injunction are sequential. Where the Applicant does not demonstrate a prima facie case, the application collapses without more. 5. In the case of **Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR)**, the Court of Appeal emphasized the need to prove a prima facie case as a precursor to pursuing an order of temporary injunction. In particular, the court clarified that the conditions must be surmounted sequentially. 6. The court stated thus: “It ***is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the Applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the Applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the Respondent will suffer, in the event the injunction is not granted, will be irreparable.”*** ***Conclusion*** 1. It is the Applicant who approached the court contending that same was not aware of or privy to the transfer of the suit property to the 1st Defendant and the subsequent charge thereof to the 2nd defendant. However, the totality of the evidence on record paints a different picture. In fact, the evidence on record show that the Applicant is guilty of dishonesty. 2. Furthermore, it is apparent that the Applicant herein was privy to and knowledgeable of previous proceedings, including an application for temporary injunction before the Court of Appeal. The Applicant failed to disclose same. In any event, the Applicant sought to deploy the concealment of the previous proceedings, in an endeavor to defeat the orders of the court of the appeal. 3. The conduct of the Applicant cannot be countenanced by a court of law. On the contrary, the Applicant herein cannot be allowed to drink from the fountain of equity. 4. The suit by the Applicant and by extension the application dated 17.03.2026, constitute[s] an abuse of the due process of the court. The same ought not to be allowed to remain in existence. **Final orders:** 1. Flowing from the analysis hereinbefore, the final orders that commend themselves to the court are: 2. ***The Application dated 17.03.2026 be and is hereby struck out.*** 3. ***The suit vide Plaint dated 17.03.2026 be and is hereby struck out.*** 4. ***The Interim Orders which were issued on the 24.03.2026 be and are hereby Discharged.*** 5. ***The costs of the application and the main suit be and are hereby awarded to the 2nd Defendant only.*** 6. ***The costs in terms of clause [iv] shall be agreed upon and in default be taxed in the conventional manner.*** 7. ***The costs in terms of clause [v] shall be recovered from the security which was deposited before the court.*** 8. It is so ordered. **DATED, SIGNED AND DELIVERED AT ISIOLO THIS 09TH DAY OF JULY, 2026** **OGUTTU MBOYA, FCIArb; CPM [MTI].** **JUDGE** In the presence of**:** Court Assistant: Zakayo/Mukami. Mr. Karanja for the Plaintiff/Applicant. Mr. Kariuki for the 1st Defendant/Respondent. Mr. Mutua Molo for the 2nd Defendant/Respondent.