Muthusi v NCBA Bank Kenya Plc (Commercial Case E045 of 2024) [2026] KEHC 12032 (KLR) (31 July 2026) (Ruling)

Muthusi v NCBA Bank Kenya Plc (Commercial Case E045 of 2024) [2026] KEHC 12032 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KEHC 12032 (KLR) Republic of Kenya In the High Court at Mombasa Commercial Case E045 of 2024 J Ngaah, J July 31, 2026 Between Rita Nduku Muthusi Plaintiff and NCBA Bank Kenya Plc Defendant Ruling 1.Before court is the defendant’s notice of motion dated 13 March 2025 expressed to be brought under sections 1A, 1B, 3, 3A and 7 of the Civil Procedure Act, chapter 21 of the Laws of Kenya, and Order 2 rule 15(1)(d) of the Civil Procedure Rules, 2010. Two substantive orders are sought: first, that the plaintiff’s suit be struck out for being res judicata and otherwise an abuse of the court process; and, secondly, that the costs of the application and of the suit be borne by the plaintiff. 2.The application is premised on the grounds on its face and on the supporting affidavit of Christine Wahome, the defendant’s senior legal counsel, sworn on 13 March 2025. The defendant’s case, in summary, is that in this suit the plaintiff challenges the defendant’s exercise of its statutory power of sale over the property known as MSA/MS/Block 1/337/A on three grounds; that those same three grounds were relied upon by the plaintiff in Mombasa High Court Civil Case No. E086 of 2022 between the same parties; that those grounds were considered and dismissed, after a full hearing, in a judgment delivered on 7 May 2024; and that the plaintiff has, in the deponent’s words, “without even pretending to give her case a cosmetic facelift”, presented the same grounds in a new suit. On this account the suit is said to be not only res judicata but also an abuse of the process of the court. 3.In proof of these assertions the deponent exhibited the plaint dated 28 November 2022 and the statement of defence dated 22 May 2023 filed in Civil Case No. E086 of 2022 (annexure “CW-1”); the parties’ respective lists of issues dated 8 June 2023 and 19 May 2023 filed in that suit (annexure “CW-2”); and the judgment of Hon. D. Kizito Magare, J delivered on 7 May 2024 (annexure “CW-3”). 4.The deponent acknowledges that the defendant had earlier taken the same points by way of a notice of preliminary objection dated 30 September 2024 which was overruled in a ruling delivered on 18 December 2024 “because it was not a true preliminary objection”. According to the deponent, the defendant has now, through the present application, taken what it terms the jurisdictional objection in its proper form, and the court should find that it lacks jurisdiction to entertain these proceedings. 5.The plaintiff opposed the application through her replying affidavit sworn on 21 November 2025. She traced the history of the proceedings: the suit was instituted on 21 August 2024 accompanied by a notice of motion under certificate of urgency; on 22 August 2024 the court gave directions on service of that application and mention of the matter; in response the defendant filed the notice of preliminary objection dated 30 September 2024 seeking to have the suit struck out for being res judicata; on 15 October 2024 the court directed that the preliminary objection would take precedence and be disposed of by way of written submissions; the parties complied and the ruling dismissing the objection was delivered through the Case Tracking System; and, no directions on the further conduct of the matter having issued, her advocates wrote to the Deputy Registrar on 6 February 2025 seeking a mention date, there being pending both her application and the main suit. Shortly thereafter, she deposes, the defendant filed a notice of change of advocates and the instant application. 6.The gravamen of the plaintiff’s opposition is that the application seeks to litigate the very issue which the preliminary objection raised, namely, that the suit be struck out for allegedly being res judicata, and that that issue is, as she puts it, “spent”. On the advice of her advocates she deposes that once a court of competent jurisdiction has rendered a determination on an issue, such as the dismissal of the objection in this matter, the court becomes functus officio on that particular point and cannot be called upon to revisit or sit on appeal over its own decision; that litigation must at some point come to an end and parties should not be allowed to perpetually re-open issues that have already been adjudicated upon; that the defendant’s conduct in filing multiple applications seeking similar outcomes amounts to an abuse of the court process designed to delay the fair hearing and determination of the main suit contrary to Articles 50(1) and 159(2)(b) of the Constitution; and that she continues to suffer prejudice from the delay, including escalation of costs and denial of timely access to justice. She urged the court to dismiss the application with costs. 7.The application was canvassed by way of written submissions. When the application was placed before the court on 26 May 2025, directions were given that the plaintiff responds to it within fourteen (14) days. Only the defendant filed submissions; they are dated 2 October 2025 and were accompanied by a list of authorities. By the time those submissions were prepared no response to the application had been filed, the plaintiff’s replying affidavit having come later; and no submissions were at any point filed on the plaintiff’s behalf in answer to those of the defendant. 8.In the submissions, learned counsel for the defendant, conscious that the application then stood undefended, properly acknowledged that even an undefended application will only be granted if it is shown to have merit, and set out to demonstrate that merit. Counsel identified two broad and, in counsel’s own words, largely overlapping grounds on which the striking out of the suit is sought: that the suit is res judicata and that it is an abuse of the court process. Before turning to those grounds, however, counsel confronted the point which the plaintiff’s counsel had orally taken when the matter was in court on 26 May 2025, and which is also the burden of the replying affidavit: that a preliminary objection founded on res judicata having been raised and dismissed by the ruling of 18 December 2024, the court cannot once more be invited to strike out the suit on account of res judicata. 9.Counsel offered two answers to that point. First, relying on NCBA Bank Kenya PLC v Africa Tea & Coffee Limited & 2 others [2024] KEHC 16912 (KLR), counsel submitted that for res judicata to be successfully invoked the issue must have been “heard and determined”, and that a suit will only be deemed to be barred by res judicata when it was heard and determined on the substantive merits of the case as opposed to being disposed of on preliminary technical points; that the ruling of 18 December 2024 rejected the objection on the basis that the documents of the previous suit had not been placed before the court; that the learned judge did not — and, without the pleadings in the former suit, could not — go through the ingredients of res judicata and find that they did not apply; and that there was, accordingly, no determination on the merits of the objection. Secondly, counsel submitted that res judicata is a jurisdictional bar around which there is no way of going, not even by consent of the parties, citing William Koross v Hezekiah Kiptoo Komen & 4 others [2015] KECA 906 (KLR); that before a court can be seized of a matter it must satisfy itself that it has authority to hear it and make a determination, citing Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service [2019] KECA 767 (KLR); and that it does not matter that the court may earlier on have held the preliminary view that it has jurisdiction — if it subsequently finds that the evidence demonstrates a lack of jurisdiction, it must declare so, citing Spire Properties (K) Limited & another v Mwabora & 70 others & 60 others [2022] KECA 947 (KLR). The ruling of 18 December 2024, it was therefore submitted, is no bar to a consideration of the application on its merits. 10.On the merits of the plea, counsel relied on Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] KEHC 6100 (KLR) both for the conditions that must co-exist before the plea can succeed — that the matter was directly in issue in the former suit; that there is a similarity of the parties; that they were litigating under the same title; that the court was competent; and that the issue was heard and finally decided — and for the extended reach of the plea to every point which properly belonged to the subject of the litigation and which the parties, exercising reasonable diligence, might have brought forward at the time. On the facts, counsel submitted that all those conditions are satisfied: it is undisputed that the defendant advanced a loan to the plaintiff and the late David Waiganjo Koinange on the security of a charge over the suit property; when the defendant attempted to exercise its statutory power of sale, the plaintiff challenged that exercise in Civil Case No. E086 of 2022 on the complaints that she was not served with the statutory notices, that the property was undervalued, that the property was the subject of succession proceedings and that the defendant had not invoked the life protection cover; those complaints were heard through oral evidence, with the plaintiff testifying, and the suit was dismissed with costs in the judgment of 7 May 2024 upon a finding that the plaintiff had not proved her case; and the same complaints were thereafter reproduced in the plaint filed in this suit, in which the court is invited to grant the very reliefs that were sought and refused in the former suit. Were the court to accept that invitation, counsel submitted, it may well end up finding fault where the trial court found no fault, giving rise to what the Court of Appeal in William Koross (supra) described as “a strange and unusual document” which was “a study in judicial check-mate”. Counsel invoked the philosophy of finality expounded in that case; submitted that the plaintiff, having lost in Civil Case No. E086 of 2022, cannot start fresh litigation before this court as if that judgment never existed, and cannot open a new battle front against the defendant in the hope of achieving a different outcome on the same facts; and pointed out, a matter that has remained uncontroverted, that it is worse that the plaintiff swore a verifying affidavit in this suit in which she states on oath that there is no, and there has been no, previous suit between the parties relating to the same issues. On abuse of the court process, counsel submitted that while the term is incapable of precise definition, an abuse occurs where the judicial process is used for a purpose other than the attainment of justice, and that it is improper to bring a multiplicity of suits; counsel relied on the observation in Satya Bhama (supra) that a litigant has no right to pursue, pari passu, two processes which will have the same effect in two courts, whether at the same time or at different times, with a view to obtaining victory in one of the processes or in both, for litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. 11.I have considered the application, the rival affidavits, the material exhibited and the defendant’s submissions. Two questions fall for determination: first, whether the ruling of 18 December 2024 precludes this court from entertaining the present application; and, secondly, if it does not, whether the plaintiff’s suit is res judicata. Costs will abide the answers to these questions. Whether this court is functus officio 12.The doctrine of functus officio was explained by the Supreme Court in Raila Odinga & 5 Others v Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR, adopting the exposition of Daniel Malan Pretorius in The Origins of the Functus Officio Doctrine, with Specific Reference to its Application in Administrative Law (2005) 122 SALJ 832:“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter… The [principle] is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker.” 13.The doctrine, however, presupposes that the issue said to be foreclosed was in fact finally decided. The starting point must therefore be what the ruling of 18 December 2024 actually determined. The material part of that ruling reads as follows:“19.To decide whether a case is res judicata, the court is required to look at the pleadings and decisions of the previous case in comparison to the instant case. However, the Defendant/Respondent did not attach documents of the previous suits to show that the current suit is res judicata.20.This court finds that it cannot be considered a pure point of law capable of disposing of a matter primarily where the court is called upon to look outside the pleadings to make a determination.21.I find that the Notice of Preliminary Objection dated 30th September 2024 is not merited and the same is dismissed with costs.” 14.The court reached that conclusion upon the authority of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Limited (1969) EA 696 and Quick Enterprises Ltd v Kenya Railways Corporation, Kisumu HCCC No. 22 of 1999, which confine a preliminary objection to a pure point of law argued on the assumption that the facts pleaded are correct, and incapable of resolution where facts have to be ascertained from elsewhere. Because a plea of res judicata requires an examination of the record of the former suit, the plea could not be sustained in limine on the material then before the court. 15.It follows that the dismissal of the preliminary objection was not an adjudication of the merits of the plea of res judicata. It was a determination that the procedural vehicle by which the plea had been presented was inapt. The question whether this suit is res judicata was expressly left undetermined — indeed, on the court’s own reasoning, it was undeterminable — for want of the pleadings, documents and decision in the former suit. A court is functus officio only in respect of what it has finally decided; it is not functus in respect of what it expressly declined to decide. 16.That, indeed, is the distinction drawn in the first authority upon which the defendant relies. In NCBA Bank Kenya PLC v Africa Tea & Coffee Limited & 2 others (supra), this court (F. Wangari, J), adopting the Court of Appeal’s decision in Tee Gee Electrics and Plastics Company Ltd v Kenya Industrial Estates Limited [2005] KLR 97, held that a suit will only be deemed to be barred by res judicata when it was heard and determined on the substantive merits of the case, as opposed to suits that are disposed of on preliminary technical points. By parity of reasoning, a plea of res judicata which is itself rejected on a preliminary technical point — in this instance, the ineptness of the procedural form in which it was presented — has not been heard and determined on its merits, and its rejection in that form cannot preclude the plea being taken afresh in the proper form and on the proper material. 17.That this is the correct reading of the ruling is placed beyond doubt by the position the plaintiff herself took at that stage. Paragraph 7 of the ruling records her submissions as follows: that “the plea of res judicata has been propagated on the basis of a preliminary objection and not by way of application”; that “it therefore becomes difficult for the court to interrogate the issue as a party is called upon to tender and produce court pleadings, documents and proceedings in respect of the previous suit which is said to have been filed for the court to compare them”; and that only then would the court “be in a position to come up with the conclusion that the two suits concern the same parties and are in respect of the same subject matter”. Having successfully persuaded the court that the plea could only properly be examined upon production of the record of the former suit by way of an application, the plaintiff can hardly be heard to complain when the defendant returns to court with precisely that record, presented in precisely that form. A litigant is not permitted to approbate and reprobate. 18.There is, in any event, a more fundamental answer. Section 7 of the Civil Procedure Act is framed in jurisdictional terms: “no court shall try any suit or issue” in which the conditions it stipulates obtain. As Nyarangi, JA famously observed in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1:“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 19.A question going to jurisdiction may be raised at any stage of the proceedings. In Phoenix of E.A. Assurance Company Limited v S. M. Thiga t/a Newspaper Service (supra), cited by the defendant, the Court of Appeal reiterated that before a court can be seized of a matter, it must satisfy itself that it has authority to hear it and make a determination, failing which the proceedings are a nullity ab initio. The Supreme Court in John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] KESC 39 (KLR) confirmed that a plea of res judicata is no exception; the plea protects, among other things, the public interest in the finality of litigation and the integrity of judgments, and it may be taken whenever the material demonstrating it becomes available to the court. 20.Nor does it matter that a court may earlier on have held the preliminary view that it has jurisdiction. In Spire Properties (K) Limited & another v Mwabora & 70 others & 60 others (supra), also cited by the defendant, the trial court’s earlier ruling assuming jurisdiction, though never appealed, was held incapable of extending to that court a jurisdiction which the Constitution and statute had not conferred; if the court subsequently finds that it is without jurisdiction, it must say so and down its tools. And since res judicata constitutes, as the Court of Appeal held in William Koross (supra), a mandatory bar that injuncts and precludes any fresh trial or reconsideration of a concluded issue, a bar which cannot be circumvented even by the consent of the parties, the ruling of 18 December 2024 could not clothe this court with a jurisdiction which, if the plea is well founded, section 7 denies it. I hold that this court is not functus officio and that the earlier ruling is no bar to the present application. I turn to the merits of the plea. Whether the suit is res judicata 21.Section 7 of the Civil Procedure Act provides:“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.” 22.The ingredients of the plea were restated in Christopher Kenyariri t/a Kenyariri & Associates Advocates v Salama Beach Hotel Limited & 3 Others [2017] eKLR, and are to the same effect as those set out in Satya Bhama Gandhi (supra) upon which the defendant relies. They must be satisfied conjunctively: (a) the suit or issue was directly and substantially in issue in the former suit; (b) the former suit was between the same parties or parties under whom they or any of them claim; (c) those parties were litigating under the same title; (d) the issue was heard and finally determined in the former suit; and (e) the court that decided the former suit was competent to try the subsequent suit or the suit in which the issue is raised. 23.To these must be added the doctrine of constructive res judicata embodied in Explanation (4) to section 7, by which any matter which might and ought to have been made a ground of defence or attack in the former suit is deemed to have been a matter directly and substantially in issue in it. The principle is as old as Henderson v Henderson (1843) 3 Hare 100, and it was in materially identical terms that it was restated in Satya Bhama Gandhi (supra). Wigram, V-C said:“…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. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.” 24.What, then, was the former suit? Civil Case No. E086 of 2022 was instituted in this court on 28 November 2022 by the plaintiff against NIC Bank Limited. Her plaint in that suit pleaded that she and her late husband, David Waiganjo Koinange, took a loan of Kshs. 28,440,000 from the defendant for the purchase of the property MSA/MS/Block 1/337A, which property was charged to the defendant on 29 September 2015; that her husband, who serviced the loan, died on 10 September 2022; and that the defendant had advertised the property for sale by public auction. The grounds of her complaint were that she had never been served with the statutory notice under section 90 of the Land Act, 2012; that she had not been served with the notification of sale as required under section 96 of the Act nor had a forced valuation report been issued to her; that the defendant had refused to produce the mortgage protection insurance cover; and that the forced sale valuation which she later came across grossly undervalued the property. She prayed for a declaration that the advertisement for sale was illegal, a permanent injunction restraining the sale of the property, an order compelling the reversal of debits on the loan account, general damages and costs. 25.The parties’ lists of issues in that suit, exhibited as annexure “CW-2”, framed for determination, among other questions: whether the defendant issued and served the plaintiff with the statutory notices required under sections 90 and 96 of the Land Act; whether the auctioneers issued and served the notification of sale in accordance with the Auctioneers Rules; whether the defendant carried out a forced valuation of the suit property and whether the property was under-valued; whether there was a mortgage protection insurance cover over the loan; whether the intended auction was marred with irregularities; and who bore the obligation of repaying the loan. 26.The suit proceeded to a full trial before Kizito, J. The plaintiff testified and was cross-examined; the defence called three witnesses, including the valuer and the process server. In the judgment delivered on 7 May 2024 the learned judge found that “the Defendant served requisite notices on the parties”; that the only allegation made related to service of the statutory notices, “these were served on the defendant [sic]”, and the question whether the co-owner was served could not be dealt with in the absence of specific pleadings; that “evidence tendered was to the effect that notices were properly served and valuation carried out”; that on the prayer for reversal of charges “there was no evidence tendered to that effect”; and that damages had neither been pleaded with particularity nor proved. The suit was found to be without merit and was dismissed with costs to the defendant. Nothing has been placed before me to suggest that that judgment has been appealed against successfully, reviewed, or otherwise set aside. 27.The instant suit was filed on 21 August 2024, some three and a half months after that judgment. Paragraphs 3 to 8 of the plaint replicate the narrative of the loan, the transfer, the charge and the death of the plaintiff’s husband. The event pleaded as precipitating the suit is a fourteen-day notification of sale issued in June 2024 by Purple Royal Auctioneers on the defendant’s instructions, in respect of an alleged outstanding debt of Kshs. 28,575,794.88. The particulars of breach pleaded against the defendant at paragraph 14 of the plaint are three: (a) failing to issue the plaintiff with current loan statements; (b) failing to conduct a forced sale valuation on the property; and (c) failing to issue appropriate notices in accordance with sections 90(1) and 96 of the Land Act, 2012. The prayers are for a permanent injunction restraining the defendant from attaching, advertising, auctioning, selling or otherwise interfering with the property or the plaintiff’s quiet possession of it; an order compelling the defendant to issue an updated loan statement; an order compelling the defendant to conduct a proper valuation of the property; general damages; and costs. 28.Measured against these elements, the position is as follows. First, the matters directly and substantially in issue in this suit which are; whether the defendant issued and served the statutory notices under sections 90(1) and 96 of the Land Act; whether it conducted a forced sale valuation; and, whether it withheld loan account information from the plaintiff, are the very matters that were directly and substantially in issue, framed as issues, litigated and decided in Civil Case No. E086 of 2022. The three particulars of breach in the present plaint are, in substance, a restatement of the grounds canvassed before and rejected by Kizito, J. The subject matter is the same property, the same charge and the same facility. 29.Secondly and thirdly, the parties are the same and litigate under the same title. The plaintiff is the same person in both suits. The defendant was sued in the former suit as NIC Bank Limited and in this suit as NCBA Bank Kenya PLC; the judgment in the former suit itself records the defendant as “NIC Bank. Now NCBA Ltd”, and both suits concern the same lender under the same letter of offer and charge. The defendant in this suit is, at the very least, a party under whom NIC Bank Limited’s interest is claimed, and the parties litigate in the same capacities of chargor and chargee. Fourthly, the issues were heard and finally determined, on the merits, after a full trial. Fifthly, the former suit was heard and determined by this very court, whose competence to try the present suit is not in question. 30.The only conceivable point of distinction is the auctioneers’ notification of June 2024, which post-dates the judgment in the former suit. But the plaint does not attack that notification on any ground peculiar to it. The particulars of breach are the antecedent statutory omissions — non-service of the notices under sections 90(1) and 96 and the want of a forced sale valuation — which are precisely the matters of compliance that the court in the former suit found established in the defendant’s favour. A fresh step taken in the exercise of the same statutory power of sale, founded upon the same notices and the same valuation, does not give rise to a fresh cause of action entitling the chargor to re-litigate the adjudicated question of compliance. Were it otherwise, a chargor could return to court upon every successive advertisement or notification, and the judgment of the court would never bind. That is exactly the mischief section 7 forecloses. 31.The defendant’s caution on this score, drawn from William Koross (supra), is apt. Were this court to entertain the suit and find fault where Kizito, J found none, the result would be two contradictory determinations of the same court, of equal jurisdiction, on the same questions between the same parties — rival decrees of the kind which the Court of Appeal in that case described as “a strange and unusual document” and “a study in judicial check-mate”, and which it pronounced a situation that is clearly untenable. A judge of this court cannot uproot, supplant or strike with obsolescence the judgment of a judge of equal jurisdiction by merely making contrary findings; the only lawful path by which the plaintiff could impeach the judgment of 7 May 2024 was by appeal or review, which she has not pursued. 32.As for the prayer for an updated loan statement, the plaintiff’s access to her loan account information was pleaded and canvassed in the former suit, where her complaint that the bank had refused to supply her with a statement was among the matters considered and the suit nonetheless dismissed. To the extent that any facet of that complaint was not pressed to a conclusion, it is a matter which might and ought to have been made a ground of attack in the former suit and is caught by Explanation (4) to section 7 and by the principle in Henderson v Henderson. The plea of res judicata looks to the substance of the litigation and not to the form in which the prayers are dressed; a cosmetic variation of prayers cannot disguise an identity of substance. 33.The rationale of the doctrine was captured by the Court of Appeal in William Koross (supra) in a passage the defendant’s submissions reproduce:“The philosophy behind the principle of res judicata is that there has to be finality; Litigation must come to an end. It is a rule to counter the all too human propensity to keep trying until something gives. It is meant to provide rest and closure, for endless litigation and agitation does little more than vex and add to costs. A successful litigant must reap the fruits of his success and the unsuccessful one must learn to let go.” 34.The Supreme Court in John Florence Maritime (supra) explained the same rationale as the public interest in an end to litigation, the protection of parties from the vexation of being called upon to answer the same claim twice, and the preservation of the integrity of judgments and of scarce judicial resources. The plaintiff herself deposes, at paragraph 17 of her replying affidavit, that “litigation must at some point come to an end and parties should not be allowed to perpetually re-open issues that have already been adjudicated upon”. That principle cuts both ways. On the issues she now seeks to ventilate, litigation came to an end on 7 May 2024. 35.I would add that this is not the first re-agitation of this dispute. The plaintiff’s own plaint in the former suit disclosed an earlier suit over the same intended auction before the Chief Magistrate’s court which was withdrawn after a preliminary objection on jurisdiction was conceded. The former suit followed and was dismissed on the merits. The present suit is the third. The successive institution of suits over the same security, on the same grounds, after a final determination on the merits, is the paradigm of an abuse of the process of the court within Order 2 rule 15(1)(d) of the Civil Procedure Rules; as was observed in Satya Bhama Gandhi (supra), a litigant has no right to pursue, pari passu, two processes which will have the same effect, whether at the same time or at different times, with a view to obtaining victory in one of them or in both, for litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. The abuse is aggravated by the matter pointed out in the defendant’s submissions, which has remained uncontroverted: that the plaintiff swore a verifying affidavit in this suit deposing that there is no, and there has been no, previous suit between the parties relating to the same issues — a deposition which the record of Civil Case No. E086 of 2022, exhibited before me, flatly contradicts. 36.All the elements of section 7 being satisfied, the conclusion is inescapable that this suit is res judicata. The consequence is not discretionary. Section 7 commands that “no court shall try” such a suit; this court is therefore without jurisdiction to try it and must, in the words of Nyarangi, JA, down its tools. The appropriate order is that the suit be struck out. With the suit goes everything pending in it; the plaintiff’s notice of motion dated 19 August 2024, which awaited directions, necessarily collapses with the suit in which it was brought. Disposition 37.In the result, the following orders commend themselves to me:a)The defendant’s notice of motion dated 13 March 2025 is allowed; the plaintiff’s suit is struck out for being res judicata;b)Consequent upon the striking out of the suit, the plaintiff’s notice of motion dated 19 August 2024 abates; and,c)The costs of the suit and of the application are awarded to the defendant.It is so ordered. DATED, SIGNED, AND DELIVERED AT MOMBASA ON 31 JULY 2026.NGAAH JAIRUSJUDGE