https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4751

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCLC NO. E375 OF 2025** **JAMES MURIGO NGUYO..........................................PLAINTIFF/RESPONDENT** **VERSUS** **WATTS AUCTIONS……...........................................1ST DEFENDANT/APPLICANT** **PRINCIPALS OF WATTS AUCTIONS…………..…….………………….2ND DEFENDANT** **TWENTY TWENTY VENTURES LIMITED .................................3RD DEFENDANT** **RULING** 1. Before me is the notice of motion dated 4th December, 2025 filed by the 1st defendant/applicant, and it is expressed to be brought under **Sections 1A, 1B, 3A, 6 and 63 (e)** of the **Civil Procedure Act and Order 51 rule 1** of the **Civil Procedure Rules** seeking the following orders:- 2. ***This honourable court be pleased to strike out with costs the plaint dated 25th July, 2025 and filed on 31st July, 2025 for offending the doctrine of sub judice as codified under Section 6 of the Civil Procedure Act.*** 3. ***This honourable court be pleased to strike out the plaint dated 25th July, 2025 as this honourable court lacks the jurisdiction to entertain this matter.*** 4. ***The respondent to provide the costs of this application.*** 5. The application is premised on the grounds inter alia that the plaintiff/respondent is also the plaintiff in HCCOMM no. E510 of 2025, Twenty Twenty Ventures & James Murigo Nguyo v African Banking Corporation Limited & Watts Auctioneers. The application is supported by the affidavit of Olando Olembo, advocate sworn even date. The learned counsel deposed that the plaintiff/respondent filed the plaint dated 25th July, 2025, and on the same day filed a similar suit in the commercial division of the high court (HCCOMM NO. E510 OF 2025). 6. He deposed that both cases involved the same parties (Twenty Twenty Ventures & James Murigu Nguyo vs. African Banking Corporation Limited & Watts Auctioneers), the same suit property (L.R. NO. 209/8524/102), and sought the same orders (restraining the statutory power of sale). He further deposed that since the identical matter was already pending before the commercial division and was scheduled for highlighting of submissions on 25th February 2026, the current suit contravened the mandatory provisions of **Section 6** of the **Civil Procedure Act**. 7. The learned counsel deposed that the plaintiff/respondent had previously instituted two other suits (MCC NO. E7983 OF 2021 and HCC NO. 5 OF 2020) in an attempt to stop the bank from exercising its statutory power of sale. Further, that this court lacked the proper jurisdiction to entertain the matter. He contends that since the core issues emanated from a commercial loan taken from the African Banking Corporation Limited, its jurisdiction rightly belonged to the commercial division of the high court, where the parallel suit was already lodged. 8. In opposition thereto, the plaintiff/respondent filed his replying affidavit sworn on 12th December, 2025. He deposed that he had never appeared in any court regarding the case in HCCOMM no. E510 of 2025 despite being the owner of the house and suit land. He further deposed that he had not instructed anyone, including any advocate or entity, to file or prosecute the same on his behalf. He added that he had never appeared before any court on any case, and that the substratum of the dispute was land and title thereto and therefore this court had the requisite jurisdiction notwithstanding the involvement of commercial or financial instruments. 9. The learned counsel for the 1st defendant/applicant filed a further affidavit sworn on 31st March, 2026. He deposed that he firm of Mogeni & Company Advocates filed a notice of change of advocates dated 15th September, 2025, indicating that they represent both plaintiffs in HCCOMM NO. E510 OF 2025. Further, that the plaintiff/respondent never denied representation in the matter, despite being aware of its existence. 10. The application was canvassed through written submissions. The 1st defendant/applicant filed its written submissions dated 6th April, 2026 while the plaintiff/respondent filed his written submissions dated 9th April, 2026. I have carefully considered the application, the replies and the submissions filed by the parties. The issue for determination is *whether the instant application and suit is sub judice and whether the court has jurisdiction to determine the suit.* 11. **Section 6** of the **Civil Procedure Act** 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.”*** 1. Further in the case of **Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) (Advisory Opinion Reference 1 of 2017) [2020] KESC 54 (KLR)** the Supreme court held as follows:- ***“The term “subjudice” is defined in Blacks Law Dictionary 9th Edition as:-*** ***“Before the Court or Judge for determination”. The purpose of the sub judice rule is to stop filing of 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 Court 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. The party that seeks to invoke the doctrine of 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.”*** 1. The 1st defendant/applicant has challenged the jurisdiction of this court to hear and determine this suit on grounds that it offends **Section 6** of the **Civil Procedure Act**. Secondly, the dispute between the parties is commercial in nature and it is a preserve of the commercial division of the high court. On the other hand, the plaintiff/respondent has distanced himself from any proceedings before any court and maintained that this court has the requisite jurisdiction to determine this suit. 2. I have keenly perused the documents relied on by the 1st defendant/applicant, and I note that there is a pending matter before the high court commercial division being HCCOMM no. E510 of 2025 Twenty Twenty Ventures & James Murigu Nguyo V African Banking Corporation Limited & Watts Auctioneers with a notice of motion dated 1st August, 2025. A reading of the application before the high court indicates that the subject matter in that suit is LR no. 209/8524/102 which is similar to this suit. In both suits, the main issue is similar in nature being the statutory power of sale. On this ground, I am satisfied that this suit offends **Section 6** of the **Civil Procedure Act** and it is equally a gross abuse of the court process. 3. Secondly, and in light of the court of appeal decision in **Co-operative Bank of Kenya Limited v Njuguna & 5 others [2017] KECA 79 (KLR)**, this court lacks the jurisdiction to determine claims challenging the statutory power of sale, auction or otherwise emanating from charges. This jurisdiction rests with the high court. Thus, I find merit in the notice of motion dated 4th December, 2025. The plaint dated 25th July, 2025 is hereby struck out. With costs to the 1st defendant/applicant. It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY ON** **THIS 23RD DAY OF JULY, 2026.** **HON. MBOGO C.G.** **JUDGE** **23/07/2026.** ***In the presence of:*** *Mr. Benson Agunga - Court assistant* *Mr. Olembo for the 1st Defendant/Applicant* *Plaintiff/Respondent - present in person*