https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9291

Shanghavi & another v Victoria Commercial Bank & 3 others (Commercial Case E569 of 2025) [2026] KEHC 9291 (KLR) (Commercial and Tax) (12 June 2026) (Ruling) Neutral citation: [2026] KEHC 9291 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E569 of 2025 MN Mwangi, J June 12, 2026 Between Nina Jayesh Shanghavi 1st Applicant Jayesh Umedlal Shanghavi 2nd Applicant and Victoria Commercial Bank 1st Respondent Kenya Shield Auctioneers 2nd Respondent Land Registrar 3rd Respondent and Kisilu Wandati Company Advocates Interested Party Ruling 1.Before the Court for determination is a Notice of Motion application dated 19th September 2025 filed pursuant to Sections 1A, 1B and 3A of the Civil Procedure Act, Order 2 Rule 15, Order 40 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The applicants pray for the exparte Orders issued on 4th September 2025, with respect to the Notice of Motion application dated 2nd September 2025, to be set aside and that the entire suit be struck out for being sub judice High Court Commercial Case No. E006 of 2022. The applicants also pray for the costs of this application and the application dated 2nd September 2025. 2.The application is premised on the grounds set out on the face of the Motion, and it is supported by an affidavit sworn on 19th September 2025 by Mr. Clement Gitau. He averred that he is the Recoveries Manager of the 1st applicant, and that the plaintiffs herein filed a Notice of Motion application dated 2nd September 2025 and obtained exparte injunction Orders against the transfer of the property known as L.R. 5934/2. 3.Mr. Gitau deposed that the plaintiffs did not disclose of the existence of two similar applications filed in High Court Commercial Case No. E006 of 2022 dated 11th August 2025 and 25th August 2025. He stated that the Court (Freda Mugambi, J.), in that matter issued directions on 13th August 2025, but exparte orders were not issued. He stated that the plaintiffs filed the second application dated 25th August 2025, but the same Court did not issue exparte orders. 4.Mr. Gitau averred that the plaintiffs filed the first application dated 2nd September 2025 and obtained exparte Orders from this Court. He stated that the plaintiffs concealed from this Court the existing applications in High Court Commercial Case No. E006 of 2022, which offends the doctrine of sub judice. He stated that the said suit was dismissed on 1st July 2025 and judgment on the counterclaim is pending in the Court, and that the plaintiff filed an application dated 3rd July 2025 seeking to set aside the dismissal, which is also pending hearing. He urged this Court to set aside the exparte Orders and strike out the entire suit, as it is an abuse of the Court process. 5.In opposition to the application, the plaintiffs filed a replying affidavit sworn on 19th November 2025 by Ms Nina Jayesh Shanghavi, on her own behalf and on behalf of the 2nd plaintiff. Ms Jayesh deposed that High Court Commercial Case No. E006 of 2022 is not pending as it was dismissed on procedural technicalities and that the issues raised therein were never determined on merits. She further stated that Courts should administer justice without undue regard to procedural technicalities and dismissal in a previous matter should not bar them from being heard in the present suit. 6.She further stated that HCCOMM NO. E035 of 2024 was withdrawn by the plaintiffs’ former Counsel, without their instructions and no suit is pending in any other Court. 7.Ms Jayesh disputed concealment of previous litigation, and stated that in the application herein, the existence and outcome of the other matters were disclosed. She averred that the property in issue had been advertised in the Star Newspapers, which do not have a nationwide circulation for public auction. She deposed that the Statutory Notice under Section 90, Notice to Sell under Section 96 of the Land Act and Redemption Notice have never been served upon them, and no valuation was done on the property. 8.She deposed that there is a risk that the property will be sold in an unlawful manner unless the Court intervenes. She stated that on 21st July 2025, her company received the sum of Kshs.21,000,000/=, which was paid on the day of the auction, which shows illegality of the intended sale or a sale behind their backs. She maintained that the previous suits were withdrawn and the present one raises genuine and substantive issues on the validity of the Statutory Notices, absence of valuation and suspicious transfer of money which can only be determined in a full hearing. She urged this Court to dismiss the instant application and direct that the interim Orders issued on 4th September 2025, remain in force. 9.The application was canvassed by way of written submissions. The applicants’ submissions dated 7th November 2025, were filed by the law firm of Harit Sheth & Associates Advocates, whereas the plaintiffs’ submissions dated 9th November 2025, were filed by the law firm of Danstan Omari & Associate Advocates. 10.Mr. Koech, the applicants’ learned Counsel submitted that the application offends the doctrine of sub judice, and it may cause potential embarrassment to the Court for having two opposing decisions on the same matter. He cited the case of the Owners of Motor Vessel “Lilian S” V Caltex Oil Kenya Limited (Civil Appeal No. 50 of 1989) [1989] KECA 48 (KLR) and Speaker of National Assembly v Karume (Civil Application 92 of 1992 [1992] KECA 42 (KLR), on the issue of jurisdiction. He relied on Section 6 of the Civil Procedure Act, which deals with the doctrine of sub judice. He urged this Court to find that the application herein is merited and allow it as prayed. 11.Mr. Danstan Omari, the plaintiffs’ learned Counsel also cited Section 6 of the Civil Procedure Act, and stated that it is a prerequisite that the former suit must still be pending before a competent Court, in order for the latter suit to be termed as sub judice. He referenced the case of Kenya Commercial Finance Co. Ltd v Afraha Education Society [2001] EA 86 and the Supreme Court case in Kenya National Commission on Human Rights v Attorney General; Independent Electoral and Boundaries Commission & 16 others (Interested parties), [2020] eKLR. 12.Counsel stated that the plaintiffs did not conceal previous litigation, as they disclosed existence of High Court Commercial Case No. E006 of 2022 and HCCOMM NO. E035 of 2024. 13.He held the position that the plaintiffs acted in good faith in their disclosure and cited the case of Uhuru Highway Development Ltd V Central Bank of Kenya [1996] eKLR and Patel v E.A Cargo Handling Services Ltd [1974] EA 75, to support his argument. He maintained that the exparte injunction orders were properly granted in accordance with the case of Giella v Cassman Brown & Co Ltd [1973] EA and Mrao Ltd V First American Bank of Kenya Ltd & 2 others [2003] eKLR. 14.He submitted that striking out of a suit is a draconian move as explained in the case of D.T. Dobie & Company (Kenya) Ltd v Muchina [1982] KLR 1. 15.He argued that the instant application raises triable issues, which require full evidence, and relied on the cases of Nitin Properties Ltd v Singh Kalsi & another [1995-1998] 2 EA 257 and Mwangi S. Kimenyi v Attorney General & another [2014] eKLR. Counsel urged this Court to dismiss the instant application with costs. 16.I have considered the application herein, the grounds on the face of it and the affidavit filed in support thereof. I have also considered the replying affidavit and the written submissions by Counsel for the parties. The issues for determination are-a.Whether the instant application offends the doctrine of sub judice; andb.Whether the exparte orders issued should be set aside. Whether the instant application offends the doctrine of sub judice. 17.The law governing the sub judice principle is enshrined in Section 6 of the Civil Procedure Act, which 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.” 18.The Supreme Court of Kenya in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties), pronounced itself on the subject of sub judice, as follows-(67)The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a 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 courts 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. A party that seeks to invoke the doctrine of res 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. 19.In this instance, the plaintiffs stated that their case was dismissed in High Court Commercial Case No. E006 of 2022, in a Judgment dated 1st July 2025. This Court notes that the applications dated 11th August 2025 and 25th August 2025 were filed after the said dismissal, and were pending in Court at the time the application dated 2nd September 2025 was filed. Additionally, it is noted that the Court (Fredah Mugambi J.), did not grant injunctive orders in the applications dated 11th August, 2025 and 25th August 2025, which prompted the filing of the application in this matter, in a quest to obtain interim orders. 20.It is my finding that inasmuch as the plaintiffs disclosed the existence of the two matters, they did not disclose the filing of the two applications seeking similar orders of injunction. I therefore agree with the applicants that the plaintiffs are forum shopping for the Court that will grant the orders that they seek, which shows bad faith on their part. It is my finding that the previous applications in High Court Commercial Case No. E006 of 2022, are between the same parties, seeking similar orders in respect to the same property, and the said applications are similar to the application dated 2nd September 2025, and thus the latter application offends the doctrine of sub judice. Whether the exparte orders issued should be set aside. 21.This Court finds that it is against principles of justice for Courts to issue conflicting decisions with respect to the same property. Inasmuch as the plaintiffs claim that their case raises triable issues with respect to the intended auction due to non-service of a Statutory Notice, Notification of Sale, a Redemption Notice and valuation of the property, this Court notes that the said issue ought to have been raised in High Court Commercial Case No. E006 of 2022, and not through the filing of another suit, which leads to multiplicity of suits seeking the same orders. 22.In the end, this Court finds that the instant application is merited. I make the following orders- a.The exparte orders granted on 4th September, 2025 are hereby set aside.b.The Notice of Motion application and the plaint both dated 2nd September 2025 and the entire suit are hereby struck out;c.The 1st & 2nd defendants/applicants are hereby awarded costs of the Notice of Motion applications dated 2nd September 2025, 19th September 2025 and the suit.It is so ordered. DATED, SIGNED AND DELIVERED IN KIAMBU ON 12TH DAY OF JUNE 2026. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:Ms Kirungi h/b for Mr. Koech for the 1st & 2nd defendants/applicantsMr. Kilonzo h/b for Mr. Danstan Omari for the plaintiffs/respondentsMs Julia – Court Assistant.