https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10430

Pramukh Chemists Ltd & another v Kenya Commercial Bank & another (Commercial Civil Case E003 of 2026) [2026] KEHC 10430 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEHC 10430 (KLR) Republic of Kenya In the High Court at Bungoma Commercial Civil Case E003 of 2026 E Ominde, J June 10, 2026 Between Pramukh Chemists Ltd 1st Applicant Falgunben Alpehs Kumar Patel 2nd Applicant and Kenya Commercial Bank 1st Respondent Garma Investments Auctioneers 2nd Respondent Ruling 1.The Applicant in this particular suit NO. HCCC E003 OF 2026 moved the court by way of Notice of Motion dated 17th April 2026. Therein the sought for interim orders under a Certificate of Urgency to the effect that the court, pending the hearing and determination of the Application inter parties issues orders temporally restraining the Respondents from advertising for sale the securities the subject of the Application and the suit, being LR. No. Ndivisi/Muchi/8489&6197 which the Plaintiffs/Applicants had provided as security for a loan advanced to them by the 1st Defendant/Respondent. 2.The court did not certify the matter as urgent but directed that the Application be served upon the Respondents who were directed to file their Response thereto within a given timeline. The Respondents filed their Responses thereto by way of a Preliminary Objection. Therein, they objected to the Application and the suit on the grounds inter alia, that the said Application, under the provisions of Section 6 of the Civil Procedure Act was sub judice for reasons that there is pending before this court HCCC No. E007/2024 which is between the same parties and which raises substantially the same issues that have been raised in the instant Application and that the subject matter being the suit land LR No. Ndivisi/Muchi/8489 & 6197. 3.The court at the mention directed that the Preliminary Objection be heard first and directed further, that parties file their respective submissions within given timelines and then set the matter for mention on 8th July 2026 to confirm compliance and fix a date for Ruling. 4.However, on 3rd June 2026, the Applicants filed another Application over the same subject matter under a Certificate of Urgency. In this Application the Applicants stated that the disposal of the suit properties was now imminent for the same had been advertised for sale by way of a public auction slated for 11th June 2026. They therefore prayed that the court issues interim orders staying the intended auction pending the hearing and determination of the Preliminary Objection which had been set for further directions on 8th July. 5.It was there contention that if the orders that they seek are not granted and the intended sale by way of auction is allowed to proceed, then the remainder of the proceedings that are appurtenant to the Preliminary Objection which is in response to their Application dated 17th April 2026 shall serve no purpose for they will have been overtaken by events. That because the Preliminary Objection is subject of their Application seeking for restraining order against the intended auction, it must be determined before the Application it challenges is determined. 6.It was their submission that subsequent to the delivery of the Ruling dated 3rd March 2025 by the Hon Justice R. Ougo in HCCC No. E007 of 2024, the Respondents served them with fresh statutory Notices to wit a 90 days Statutory Notice dated 28th August 2025 and a 40 days Statutory Notice dated 11th February 2026. That it is the Plaintiff/Applicants argument that the said Notices are not valid and cannot therefore justify the auction and that this is a prima facie ground to justify the interim relief sought. 7.The court certified the matter as urgent but declined to issue any interim orders but gave expedited dates for service and the hearing of the Application. This was on the grounds that orders on the grounds that upon perusing HCCC No. E007 of 2024, the court observed from its cursory perusal of an Application filed on 18th July 2024 that the suit properties the subject matter of this particular cause are similar to suit properties that are the subject of the cause therein, and further that the circumstances under which this instant application has been brought are the very same circumstances under which the said Application in E007/2024 was filed. The hearing date of today was fixed. 8.The Respondent in their Response to the Application dated 3rd June 2026 filed a Replying Affidavit and Grounds of objection wherein they pleaded that the Application of 17th April 2026 upon which the Application of 3rd June 2026 was premised was both res judicata and sub judice. Their plea of res judicata was based on the grounds that a similar Application over the same subject matter over the same issues was already heard and determined by the Hon. Lady Justice Ougo who subsequently delivered a Ruling dated 3rd March 2025 in HCCC No. E007 of 2024. That in the said Ruling, the Hon Judge after the inter parties hearing of the Application dated 18th July 2024 declined to grant the Applicants prayer for an order of an interim injunction staying the intended auction of the suit properties therein being NDIVISI/MUCHI/8489 & 6197 for the reasons advanced by the Applicants that the Statutory Notices therein served were invalid. 9.The Judge held that the validity of the Statutory Notices issued upon the Applicant that they had challenged in the Application of 18th July 2024 cannot be a cause to deny the Respondent their right to exercise their statutory power of sale by way of an injunction for reasons that fresh Statutory Notices with strict compliance to the requisite timelines 10.The plea of sub judice was raised for reasons of the pendency of a similar application in the same said HCCC No. E007/2024 for the reasons already herein summarized. At the hearing, Counsel for the Applicant sought for time to file a Supplementary Affidavit stating that because of the expedited timelines set by the court, he had not been able to file on time and that in the interest of fairness the court grants him one hour to file before submissions on the Application are made. 11.Upon the resumption of the hearing, Counsel for the Applicants in a nutshell, submitted that this matter is not res judicata for reasons inter alia that subsequent to the Ruling of the Hon. Justice Ougo, the Respondents served the Applicants with fresh 90 and 40 days Statutory Notices which too were invalid hence this suit. That because the present suit and Application are premised on Statutory Notices that were issued subsequent to Hon. Justice Ougo‘s Ruling delivered on 3rd March 2025, specifically in August 2025 and February then this suit is indeed a fresh suit and can therefore not be said to be res judicata by dint of the Hon Judge’s Ruling in HCCC E007 of 2024. 12.On the plea of sub judice, whereas Counsel submitted that at worst, this is the rule that their current suit can be said to be in breach of, the position is that they have already withdrawn the suit No. E007/2024. That this was by way of a Notice of withdrawal of the said suit dated 8TH June 2026 which Notice was annexed to the Supplementary Affidavit. That in this regard, the sub judice rule is not applicable. To this submission Counsel for the Respondent submitted that this fact is not borne of any record for reasons that he had not been served with any such Notice. 13.At this juncture, the court finds it necessary to state that upon rising in the morning to allow for the filing of the Supplementary Affidavit by the Applicant, it directed that the HCCC No. E007/2024 be availed to the court for its perusal and this was done and the court did peruse the file. Upon my perusal of the physical file, I noted that no Notice of Withdrawal of the suit had been filed. My Further perusal of the virtual file via the CTS also returned the same verdict. 14.It was therefore clearly apparent that the Notice of Withdrawal as Annexed to the Supplementary Affidavit was just so in purport and was not at all meant to be filed and/or served because there was no intention on the part of the Applicants to withdraw the suit. Obviously then, the only reasonable and logical conclusion that the court can and does draw in these circumstances is that the purported notice had simply been prepared and annexed to the supplementary affidavit with the sole purpose of hoodwinking the court into believing that the matter had been withdrawn. 15.Against this backdrop, I have carefully considered the application dated 3rd June 2026. I have considered the depositions made in the Affidavits filed in support of and against the said Application together with the annexures thereto as well as the Grounds of Objection filed by the Respondent. I have addressed my mind to the oral submissions made by Counsel for the parties. as well as the oral submissions made. I have also perused the Application dated 18th July 2026 as filed in HCCC No. E007/2024 especially with regard to the orders therein sought. 16.Further, I have also read and considered the reasons for the determination made by the Hon Justice Ougo in her Ruling rendered on 3rd March 2025. It has been submitted by Counsel for the Respondent that the Application dated 17th April 2026, upon which the instant Application dated 3rd June 2026 is an exact replica, word for word, of the Application dated 18th July 2024 upon which Hon Ougo rendered herself in the Ruling dated 3rdMarch 2025. 17.It is of special significance and worthy of note that this submission has not at all been denied by Counsel for the Applicant. As the court too has observed, this is the position that is pertaining at this moment in time and the court also notes that no appeal has been preferred by the Applicants. The Application of 17th April 2026 as juxtaposed against the Application dated 18th July 2024 is its mirror reflection 18.Counsel for the Applicant has submitted that because this current Application is with respect to fresh notices as already herein summarized, then it is not and cannot be said to be res judicata the decision in HCCC No. E007 of 2024.The rule on res judicata as provided under Section 7 of the Civil Procedure Act reads as follows;Res judicataNo 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. 19.It is to be noted that it is the substance, in other words substratum upon which the suit is premised that matters in determining whether a suit is res judicata or not and in this regard, it is my very well considered opinion that the substratum of this case is that there is a chargor who is seeking to exercise their statutory power of sale of properties availed to them by a chargee and it is the exercise of this right of the chargor that that was directly and substantially in dispute before Hon Ougo J. 20.It is the same right that has been challenged by way of the Application dated 17th April 2026. It may very well be that the circumstances of the issuance of the statutory notices as has been submitted are different now but that in my view belongs to the purview of the inter parties hearing. As matters stand now, with the substratum being in place, and the same as is having not been challenged, the court is hesitant to issue interim orders. 21.Coming to the sub judice rule, the law as set out under Section 6 of the Civil Procedure Act is as here under reproduced;Stay of suitNo 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. 22.In the instant case, as the court has already observed, not only is there no Notice of withdrawal of HCCC No. E007/2024 in both the physical and electronic record of the court as has been alleged by the Counsel for the Applicant. Further to this, it is also important to note that as at 17th April 2026 when the Instant suit and Application were filed, contrary to the aforementioned provisions of Section 6 of the Civil Procedure Act, HCCC No. E007 of 2024 was still very much alive and active in the court system. This was a very affront to the doctrine of sub judice and I need not say more on the matter. 23.In conclusion therefore, having found that the Application dated 17th April 2026 upon which the instant Application dated 3rd June 2026 is premised offends both the res judicata and the sub judice rules, it is my further finding that the foundation upon which the interim orders sought therefore is prima facie faulty for the same is misconceived and bad in law and is therefore incapable of supporting anything. In this regard, the said interim orders sought have no legs to stand on and are therefore denied. The orders already herein issued on the hearing and disposal of the Application dated 17th April 2026 are now hereby reiterated. READ DATED AND SIGNED AT BUNGOMA ON 10TH JUNE 2026E. OMINDEJUDGE