https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7578

Patel & another v United Credit Limited & another (Civil Case E532 of 2025) [2026] KEHC 7578 (KLR) (Commercial & Admiralty) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7578 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Admiralty Civil Case E532 of 2025 PM Mulwa, J May 28, 2026 Between Divyesh Indubahi Patel 1st Plaintiff Alpa Divyeshkumar Patel 2nd Plaintiff and United Credit Limited 1st Defendant Equip Agencies Limited 2nd Defendant Ruling 1.The Plaintiff’s filed the Notice of Motion dated 15th August 2025, brought under Order 40 Rules 1 and 2, Order 51 Rule 1 of the Civil Procedure Rules 2010, Section 1A, 1B and 3A of the civil procedure Act Section 90, 96, and 97 of the Land Act and Rule 15 of the Auctioneers Rules, 1997. The Applicants seek inter alia the following orders:i.An order restraining the Respondents their servants, agents, employees, auctioneers or anyone acting on their behalf or at their instructions from advertising for sale, disposing of, selling by public auction or private treaty, transferring, leasing, charging, alienating or otherwise howsoever interfering with the applicant’s ownership possession, title or interest in House Number 10 and DSQ No. 10a & 10b erected on L. R 2951/201(Original No. 2951/122/2).ii.An order postponing the exercise of the 1st Defendant’s statutory power of sale over the suit property for a period of at least 6 months.iii.The cots be provided for 2.The application is premised on the grounds of the face of the record and supported by the annexed affidavit of Divyesh Indubhai Patel. He deposes that the Plaintiffs are the registered joint proprietors of House No. 10 and DSQ Nos. 10A and 10B erected on L.R. No. 2951/201 (originally L.R. No. 2951/122/2), known as Magnolia Hills, which constitutes their matrimonial home. He avers that in July 2023, the 2nd Defendant, a company in which the 1st Plaintiff is a director, sought working capital and requested to use the suit property as security for a financial facility. 3.He states that on 31st July 2023, the 1st and 2nd Defendants entered into a Hire Purchase Agreement for Kshs. 30,000,000 repayable within 12 months at an interest rate of 24% per annum on a reducing balance, together with a commitment fee of Kshs. 150,000. As security, the Plaintiffs executed a legal charge over their matrimonial property, and the directors of the 2nd Defendant provided personal guarantees. 4.He avers that on 21st November 2024, he received the statutory demand for Kshs. 55,740,325/=. He contends that the amount demanded is grossly inflated, oppressive, and founded on unlawful and unconscionable terms. He also avers that the figures in the statutory demand differ from those in the auctioneer’s notification. 5.He contends that the intended exercise of the statutory power of sale is unlawful for want of compliance with Sections 90, 96(2), and 97(2) of the Land Act as well as Rule 15 of the Auctioneers Rules, citing failure to issue valid statutory notices, redemption notices, and conduct a current valuation. 6.He avers that the 1st Defendant is not licensed or regulated under the Banking Act yet purports to advance credit facilities secured by immovable property. According to the Plaintiffs, the 2nd Defendant expects payment of over Kshs. 170 million from Nairobi Metropolitan Services by September 2025, sufficient to substantially settle the debt, but despite being informed of the same, the 1st Defendant has declined to postpone the auction. 7.He states that unless the court intervenes urgently, the threatened sale, which is imminent and likely to occur during the court vacation, will occasion irreparable loss through the sale of their matrimonial home and render the suit nugatory. 8.The 1st Defendant opposes the application by the affidavit of Kinal Kamlesh Bid, sworn on 26th September 2025. He avers that the Plaintiffs, having been issued with a loan facility, defaulted in the repayment, causing the statutory power of sale to crystalize. The Plaintiffs failed to comply with the statutory notices, thereby causing the 1st Defendant to instruct Siuma Auctioneers to proceed with the sale by public auction. He avers the sum of Kshs. 94,087,792/= as per the notification of sale dated 9th July 2025, escalated due to penal interest and charges. 9.He avers that the current application is res judicata as the Plaintiffs have failed to disclose the existence of HCCOMM E105 of 2025 - Divyesh Indubahi Patel & 2 others v United Credit Limited, which is still pending before the court, and the injunction application was dismissed on 19th June 2025. 10.The application was heard by way of written submissions. the Plaintiffs filed submissions dated 23rd January 2026 while the 1st Defendant filed submissions dated 18th February 2026. Analysis and determination 11.I have considered the application, the affidavits on record and the rival submissions by counsel. The issues for determination are:i.Whether the application is res judicataii.Whether the Plaintiffs have satisfied the conditions for grant of a temporary injunction. 12.Before considering the issue of res judicata, it is important to note that this Court previously ruled on a Preliminary Objection in which the Defendant raised, among other things, the doctrines of res judicata and sub judice. The Court dismissed the Preliminary Objection on 11th December 2025 because it failed to meet the standard set in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, as it was based on disputed facts. This dismissal was not a final decision that the dispute was res judicata. The Court only found that, based on the information available at that time, the objection did not constitute a pure point of law capable of resolving the matter without looking at evidence. 13.The issue arises in a different context. The Court has reviewed the pleadings, affidavits, annexures, and the record in HCCOMM E105 of 2025. After examining the materials therein, the Court can now assess whether the criteria for res judicata under Section 7 of the Civil Procedure Act are satisfied. 14.The Court is neither hearing an appeal nor reviewing its earlier decision. Instead, it is deciding the issue on the basis of the current evidence and the record of the previous proceedings. 15.On the issue of whether the suit is res judicata, the 1st Defendant avers that the Plaintiff has filed a similar suit, HCOMM E105 of 2025, Divyesh Indubhai Patel and Alpa Divyeshkumar Patel & Anor vs United Credit Limited. 16.The doctrine of res judicata in Kenyan law is embodied or anchored on Section 7 of the Civil Procedure Act. It is in these terms: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. 17.From the above, the ingredients of res judicata are, firstly, that the issue in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar. Secondly, that the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title and lastly that the court or tribunal before which the former suit was litigated was competent and determined the suit finally (See Karia & Another v the Attorney General and Others [2005] 1 EA 83). 18.From the material placed before the court, it is evident that the Plaintiffs previously instituted HCCOMM E105 of 2025 against the same Defendant, relating to the same charge instrument and the same suit property. I have perused the record and note that an application dated 12th February 2025, seeking injunctive relief to restrain the exercise of the statutory power of sale of the suit property I.R. No. 135319, House No. 10, and DSQ Nos. 10A and 10B, was heard and dismissed by my brother, Hon J. Moses Ado, the court, on 19th June 2025. 19.The present application seeks substantially similar reliefs seeking to stop the 1st Defendant from exercising its statutory power of sale over the suit property, House Number 10 and DSQ Nos. 10a & 10b erected on L. R 2951/201(Original No. 2951/122/2. 20.From the record, the subject matter being litigated is similar in both applications, and the reliefs sought are similar. The parties are also similar in the two suits. 21.The Plaintiffs cannot be permitted to re-litigate issues which have already been determined by a court of competent jurisdiction merely by instituting a fresh application couched in different language. To permit such litigation would offend the principle of finality in litigation and amount to an abuse of the court process. 22.The rationale behind res judicata is based on the public interest that there should be an end to litigation, coupled with the interest to protect a party from facing repetitive litigation over the same matter. 23.In Henderson v Henderson [1843] 67 ER 313:“…where a given matter becomes the subject of litigation in and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.” 24.In the circumstances, I am satisfied that the present application is res judicata within the meaning of Section 7 of the Civil Procedure Act. Having so found, the court need not delve into the merits of the application for injunction. 25.Consequently, the Notice of Motion dated 15th August 2025 is hereby dismissed with costs to the 1st Defendant. 26.The parties are to indicate which file they wish to proceed with for the hearing of the dispute on its merits, that is, the instant file or HCCOMM E105 of 2025. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 28TH DAY OF MAY 2026.P.M MULWAJUDGEIn the presence of:Ms. Kimera for PlaintiffMr. Ochwo for 1st DefendantMs. Kariuki for 2nd DefendantCourt Assistant: Lispa