https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12753

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAJIADO** **HCComm. No. E004 OF 2022** **SON HARDWARE LIMITED………………….…………………….PLAINTIFF** **VERSUS** **ARUMBA LIMITED ...........................................………..1ST DEFENDANT** **DEVELOPMENT BANK OF KENYA LTD…….……………..2ND DEFENDANT** **RULING** 1. The initial applications in this matter were handled by my predecessor **Mutuku J,** and upon transfer of the learned Judge, the cause was listed before me on 29.05.2025 when directions were issued for the hearing of motions dated 15.01.2024, 30.01.2025 and 10.02.2025 together. The applications were heard on 25.02.2026 and ruling was reserved for 9.07.2026, but during the hiatus, a subsequent motion dated 25.03.2026 was filed. Directions were accordingly issued in respect of that motion. However, while preparing its ruling the court discovered that the motion dated 15.01.2024 had already been heard before **Mutuku J** and ruling thereon delivered on 17.09.2024. 2. In the circumstances, the applications which are the subject of the present ruling are the motion dated 30.01.2025 (hereafter the first motion) brought by **Ariumba Limited**, the 1st Defendant herein; the motion dated 10.02.2026 (hereafter the second motion) brought by **Son Hardware Limited**, the Plaintiff herein; and the motion dated 25.03.2026 (hereafter the third motion), by the **Development Bank of Kenya Limited**, the 2nd Defendant herein. **The First Motion** 1. The first motion is expressed to be brought under Sections 6 and 7 of the Civil Procedure Act, Order 2 Rule 15(1) (a) (d) and Order 36 Rule 1(b) of the Civil Procedure Rules (CPR). Therein the 1st Defendant is principally seeking that the plaint dated 11th April, 2022 be struck out and that summary judgement be entered in favour of the 1st Defendant, the plaintiff in the counterclaim in the Defence and Counterclaim dated 31st September, 2024. 2. The first motion is based on the grounds on its face as amplified in the affidavit of **Mbugua Gecaga**, described as a director and shareholder of the 1st Defendant. To the effect that the Plaintiff's suit constitutes an abuse of the court process because, substantially similar issues concerning the sale and transfer of the suit property had already been raised in **Kajiado HCCC No. 44 of 2018.** And in **ELC No. 10 of 2021**, wherein, the Plaintiff sought to invalidate the sale and transfer of the property described as **LR No. Ngong/Ngong/33632** (hereafter the suit property) by the 2nd Defendant, and that although **HCCC No. 44 of 2018** is yet to be heard and determined, the pendency of the two suits renders the present proceedings improper and duplicative. 3. The deponent called to his aid the decision of the Court of Appeal in **Civil Application No. 3 of 2019**, by which the court had declined, pending appeal, to grant interim injunctive orders and stay of the ruling of this court **(Nyakundi J**) in **HCC No. 44 of 2018** dismissing the Plaintiff’s application therein that had sought to challenge the exercise of the statutory power of sale by the 2nd Defendant. Hence, the present proceedings seeking to revisit matters which arose from the same transaction amount to an abuse of the judicial process. 4. It was further deposed that the 1st Defendant lawfully acquired ownership of suit property following a public auction conducted by the 2nd Defendant on 6 July 2021, consequent to which the transfer to the 1st Defendant was registered on 21 December 2021, matters expressly acknowledged in the Plaintiff's plaint. Hence, there is no legitimate basis upon which the Plaintiff can challenge the 1st Defendant's title. According to the deponent, the Plaintiff's claims against the 1st Defendant discloses no reasonable cause of action. 5. The affidavit also addressed the counterclaim lodged by the 1st Defendant on 31 September 2024, pointing out that despite service, the Plaintiff had not filed any defence thereto. Consequently, he avers that there is no bona fide defence raising any triable issue and that the counterclaim deserves entry of summary judgment, more so as there is no issue outstanding for trial, the 1st Defendant’s purchase of the property at a public auction and subsequent registration in the 1st Defendant's being undisputed. 6. In the result, it was contended that the Plaintiff's suit was frivolous, vexatious and an abuse of the court process, while the counterclaim remains undefended, hence the first motion ought to be granted. 7. In opposition to the first motion, **Peter Muinami Juma**, who described himself as a director of the Plaintiff swore a replying affidavit dated 14th February, 2025. Dismissing the first motion as frivolous, misconceived and a blatant abuse of the court process, the deponent, contended that it was founded on erroneous factual and legal premises. Disputing the assertion that the present suit is an abuse of the court process on account of the pendency of **HCCC No. 44 of 2018** and the ruling in Civil Application No. 3 of 2019, the deponent averred that the former suit was dismissed on 17 July 2020 for want of prosecution and the subsequent application for reinstatement equally dismissed. 8. With regard to the proceedings before the Court of Appeal, the deponent explained that **Civil Application No. 3 of 2019**, was merely an application brought under Rule 5(2)(b) of the Court of Appeal Rules seeking interim relief and did not determine the substantive appeal. Adding that the actual appeal was **Civil Appeal No. 29 of 2019**, where judgment was due on 28 March 2025, hence no final determination had been made on the issues raised. 9. Attacking the counterclaim, the deponent averred that the defence upon which it is premised was filed out of time and never served upon the Plaintiff, and pointing to the second motion by the Plaintiff seeking to strike out both the defence and the counterclaim. In his view, the counterclaim was a generic pleading that substantially admits the Plaintiff's claim while paradoxically seeking judgment against the co-defendant, rendering it legally unsustainable, and incurably defective and ought to be dismissed. Other similar matters raised are argumentative in nature, hence unsuited as depositions in an affidavit. 10. The 2nd Defendant did not initially participate in the motion, but subsequent to the reservation of the ruling date had filed the third motion essentially seeking unconditional leave to file its defence to the counterclaim out of time and to file a reply to the first motion. Filed alongside the motion was a defence to the counterclaim dated 18.03.2026 and the replying affidavit of the 2nd Defendant through its legal manager **Chris Gachiri** which is to the effect that while the 2nd Defendant did not oppose the prayer for striking out the plaint, it was opposed to the prayer in the first motion; that not having been served with the defence and counterclaim it had belatedly filed a defence dated 11th March 2026 to the counterclaim. 11. Contending that the first motion did not muster the threshold for the entry of summary judgment, the deponent asserted that the belated defence to the counterclaim raises triable issues including that, at the fall of the hammer at the auction and followed by subsequent transfer of the suit property to the 1st Defendant, the 1st Defendant was discharged from its obligations; that the 2nd Defendant had adhered to due process regarding the process of the sale hence passed good title to the 1st Defendant and was not liable for any legal hurdles occasioned by the Plaintiff regarding the granting of vacant possession to the 1st Defendant; and that the 2nd Defendant was not liable for any alleged loss and fraud. In addition, stating that summary judgment would defeat its right to a fair trial. **Submissions** 1. By his submissions in respect of the first motion, counsel for the 1st Defendant argued as follows in support of the ground that the plaint does not disclose a reasonable cause of action. First, that the Plaintiff expressly admits that the suit property, was sold by public auction on 6 July 2021 and transferred to the 1st Defendant; that upon the auction being completed and the property transferred, the Plaintiff, as chargor, lost any proprietary interest in the property and could only pursue a claim for damages, if at all, citing **Nancy Kahoya Amadiva v Expert Credit Limited & Another [2015] eKLR**, for the proposition that the remedy available to a chargor prejudiced by an irregular exercise of the statutory power of sale is limited to damages; hence the Plaintiff had no sustainable claim against the 1st Defendant as the purchaser of the suit property and that the plaint should therefore be struck out. 2. In support of the ground that the suit is an abuse of the court process, it was argued that the issues raised in the present suit have already been litigated in previously filed suits or are pending, including **HCCC No. 44 of 2018** seeking to restrain the sale of the suit property, which was dismissed for want of prosecution and **ELC No. 10 of 2021**, involving the same parties and the same property, now pending before the Environment and Land Court (ELC). Amounting to an impermissible multiplicity of suits over the same subject matter. 3. Hence, the present suit is res judicata pursuant to the provisions of Sections 7 of the Civil Procedure Act (CPA), counsel relying on the Court of Appeal decision in **John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2015] eKLR**, to the effect that the doctrine existed to bring litigation to an end, prevent repetitive suits between the same parties, conserve judicial resources, and uphold the rule of law. Thus, the Plaintiff should not be permitted to re-litigate issues that have already been determined. 4. In addition counsel citing Section 6 of the CPA contended that the suit is *sub judice* in light of the subsisting suit before the ELC, namely **ELC No. 10 of 2021**, involving the same parties and the same subject matter. Counsel relied on **Kenya National Commission on Human Rights v Attorney General; Independent Electoral and Boundaries Commission & 16 Others (Interested Parties) [2020] eKLR**, for the holding that the doctrine of *sub judice* is intended to prevent parallel proceedings over the same dispute and obviate the risk of conflicting decisions. 5. Finally with regard to the defence and counterclaim by the 1st Defendant, counsel pointed out that that no defence had been filed by the Plaintiff. Hence, under Order 36 Rule 1(b) of the Civil Procedure Rules, summary judgment is appropriate, in the absence of a demonstration of any bona fide triable issue. And invoking the holding by the Court of Appeal in **Continental Butchery Limited v Nthiwa [1978] KLR**, that the summary procedure invoked is intended to avoid unnecessary delay where no genuine defence exists. 6. In dismissing the Plaintiff's assertion that the defence and counterclaim were filed out of time, counsel asserted that the second motion by the Plaintiff seeking to strike out the defence and counterclaim was an afterthought and incapable of defeating the first motion. And reiterating that the Plaintiff had not demonstrated any triable issue or sufficient reason why leave to defend the counterclaim should be granted. The court was therefore urged to allow the first motion. 7. The Plaintiff’s submissions are dated 28th May, 2025. Reiterating affidavit material in response to the first motion, counsel asserted that the previous proceedings cited by the 1st Defendant either no longer exist, have already been determined, or concern entirely different causes of action, and therefore cannot justify the striking out of the present suit. 8. In countering the 1st Defendant's contention that the Plaintiff's equity of redemption was extinguished upon the fall of the hammer at the public auction, counsel argued that while the general rule is that a chargor's right of redemption ceases upon a lawful sale, there are exceptions where, the sale itself is tainted by fraud or where as in this case, the 2nd Defendant bank allegedly used the 1st Defendant as its proxy to purchase the Plaintiff’s charged property in circumstances suggesting collusion. Additional factual matters raised reiterating the Plaintiff’s allegations of fraud and collusion surrounding the sale of the charged suit property which were not expressly pleaded in the plaint, and unsuited for submissions were made. 9. Counsel also highlighted that the auction and subsequent transfer of the suit property were illegal having been undertaken in defiance of an existing court order restraining the transfer of the property and despite the existence of a caution registered against the title. Thus, the court ought not to sanction or validate an illegal transaction merely because registration has already taken place. 10. The Court of Appeal decision in **Marteve Guest House Limited v Njenga & 3 Others (Civil Appeal No. 400 of 2018) [2022] KECA 539 (KLR),** was cited for the distinction between an irregular auction sale and a void sale; that while an innocent purchaser in an irregular sale may be protected by statute, such protection is unavailable where the statutory power of sale had not accrued or where, the sale was vitiated by fraud, especially where the chargee participated in the fraudulent transaction. And for the holding that courts should not enforce illegal transactions, that acts founded on nullities remain void, and that the doctrine of indefeasibility of title does not protect titles obtained through fraud or illegality. 11. Counsel thus argued that the 1st Defendant cannot rely on the principle that the fall of the hammer extinguished the Plaintiff's rights if the sale itself was void from the outset. Regarding the prayer for summary judgment on the counterclaim, counsel contended that failure to file a defence to the counterclaim was due to want of service of the defence and counterclaim. Hence the Plaintiff could not be penalised through entry of summary judgment. 12. The 2nd Defendant in submissions filed in support of the third motion also addressed the prayers in the first motion seeking summary judgment against it. Relying on the Court of Appeal decision in **Meya Agri Traders Ltd. Vs. Elgon House (2010) Ltd. (2023) KECA 574(KLR)** reaffirming the decision in **UAP Insurance Company Limited V Lenny M Kivuti (1997),** counsel submitted that in an application for summary judgment even a single bona fide triable issue, entitles the defendant to unconditional leave to defend as held in **Kundanlal Restaurant v Devshi & Company [1952] 19 E.A.C.A. 77 and Hasmani v Banque du Congo Belge [1938] 5 E.A.C.A. 89**. Counsel therefore contended that its proposed late defence statement defeats the first motion. Therefore, counsel urged the court to dismiss the first motion, and direct that the issues raised in the counterclaim be determined on their merits at a full trial. **The Second Motion** 1. The second motion was by the Plaintiff and expressed to be brought under Order 13 rule 2, Order 2 rule 15(1)( c ) and (d) of the CPR and seeking that the 1st Defendant’s defence and counter claim be struck out, and judgement on admission be entered against the 1st Defendant . The motion was premised on the grounds on its face and affidavit sworn by **Peter Muinami Juma.** To the effect that the 1st Defendant's defence and counterclaim contain several admissions which entitle the Plaintiff to judgment on admission and the striking out of the defence and counterclaim. 2. Including admissions that the 1st Defendant did not pay any consideration towards the purchase of the suit property at the alleged public auction, that the 2nd Defendant did not serve the mandatory statutory notice and that the transfer of the suit property was effected during the subsistence of a court order restraining the transfer which admissions are sufficient to demonstrate that the defence is unsustainable and incapable of raising any bona fide triable issue. 3. The deponent further averred that the defence and counterclaim was defective and bad in law because the 1st Defendant, being a co-defendant could not properly maintain a counterclaim against another co-defendant in the same proceedings. Stating that there was no genuine public auction, the deponent contended that the alleged sale resulted from a conspiracy between the 1st and 2nd Defendants, and the deposit and balance of the purchase price did not originate from the 1st Defendant but payments were reflected through manipulated bank transactions orchestrated by the 2nd Defendant to create the appearance of a lawful sale. Matters that the 1st Defendant had allegedly never specifically denied. 4. The deponent further stated that the 1st Defendant company had been incorporated only a few months before the auction yet purportedly purchased property valued at approximately **Kshs.39 million** before filing its first annual returns; that he had challenged the 1st Defendant to produce its financial statements or KRA returns to demonstrate its financial capacity to fund such a purchase, but no such evidence had been provided supporting the inference that the alleged purchase was not genuine. 5. Finally, the deponent contended that the prayer seeking refund of the purchase price in the 1st Defendant's defence and counterclaim effectively discloses a disguised attempt by the Defendants to mislead the court regarding the true nature of the transaction. He therefore prayed that the court allow the second motion. 6. In opposing the second motion, the 1st Defendant filed grounds of opposition dated 15th April, 2025. To the effect that the motion is devoid of merit and does not meet the threshold for either striking out the defence and counterclaim or entering judgment on admission; that no admissions capable of supporting judgment on admission are pleaded in the defence and counterclaim; that the Plaintiff had failed to establish any of the grounds under Order 2 Rule 15 of the CPR for striking out pleadings; and that the motion is an afterthought brought in response to the first motion and should be dismissed. **Submissions** 1. The Plaintiff’s submissions dated 28.05.2025 reiterate allegations contained at paragraph 20 of the 1st Defendant's counterclaim, namely, that the 2nd Defendant misrepresented the status of possession of the suit property, failed to disclose material facts, disposed of the property through an illegal auction, failed to serve statutory notices, disobeyed court orders, transferred the property without consideration, effected the transfer despite subsisting court orders, and failed to comply with the provisions of the Land Act as constituting admissions to the Plaintiff’s claim. 2. Counsel therefore submitted that based on these averments the sale and transfer of the suit property were unlawful, hence substantially supporting the Plaintiff's claim. The Applicant further points to the prayer in the counterclaim seeking refund of the purchase price from the 2nd Defendant as further confirmation that the 1st Defendant itself recognizes the illegality of the transaction. 3. Counsel argued that, in light of these admissions, there were no triable issues requiring a full hearing and that the court should strike out the defence and counterclaim and enter judgment on admission. It was further submitted that the counterclaim is incompetent being directed against a co-defendant in the same proceedings, which counsel contends is an abuse of the court process and legally untenable. 4. Asserting that the pleadings reveal a conspiracy between the Defendants, counsel reiterating affidavit material stated that the 1st Defendant was merely a façade created for the purpose of acquiring the suit property on behalf of the 2nd Defendant. And reiterating claims in the supporting affidavit urged that the second motion be allowed. 5. [On](http://opposition.on) its part, the 2nd Defendant termed the second motion as between the Plaintiff and the 1st Defendant, and as stated earlier, only subsequently filed a response to the first motion, and defence to the counterclaim, via its application dated 25.03.2026, the third motion, to which the court now turns. **The Third Motion** 1. The third motion by the 2nd Defendant is expressed to be brought pursuant to Article 50 and 159(2)(d) of the Constitution, section 1A, 1B and 3A of the Civil Procedure Act (CPA) essentially seeking the late admission of the 2nd Defendants replying affidavit dated 25th March, 2026 in opposition to the first motion, and unconditional leave to the 2nd Defendant to file its defence to the counterclaim out of time and adoption of the 2nd Defendant’s defence to the counterclaim dated 18th March, 2026 . 2. The application was supported by the affidavit sworn by **Chris Gachiri**, the Legal Manager of the 2nd Defendant, stating that while the 2nd Defendant did not oppose the striking out of the Plaintiff's plaint, it strongly opposed the entry of summary judgment against it on the counterclaim. Explaining the 2nd Defendant’s failure to file defence on time due to non-service of the defence and counterclaim until served with the application seeking summary judgment thereon. 3. The affidavit further states that the defence to the counterclaim raises several triable issues which can only be resolved at a full hearing. Namely, upon the fall of the hammer at the public auction and the subsequent transfer of the suit property to the 1st Defendant, the 2nd Defendant was discharged from its obligations under the transaction; that the 2nd Defendant having lawfully exercised its statutory power of sale, complied with all the requisite legal procedures, passed good title to the 1st Defendant, and cannot be held liable for any legal challenges or alleged fraud arising after the transfer of the property; and that any alleged loss or fraud is disputed and can only be determined after hearing evidence at trial. 4. Finally, the deponent asserts that no prejudice will be suffered by the other parties if the 2nd Defendant's response and defence are admitted, whereas entering summary judgment without considering its defence would unjustly condemn the 2nd Defendant unheard. He therefore prayed that the court allow the motion as prayed so that the issues raised can be determined on merits upon a full hearing. 5. **Peter Muinami Juma** on behalf of the Plaintiff swore the replying affidavit dated 18th March, 2026 in opposition to the third motion. Contending that the motion was legally misconceived and incompetent for seeking to arrest the delivery of the ruling on the first motion, despite the motion having been heard alongside the second motion; that there is no provision of law permitting a court to arrest the delivery of a ruling or judgment after an application has already been heard; and that the motion neither seeks to set aside the proceedings that culminated in the pending ruling nor provides any lawful justification for delaying the court's decision. He further asserts that the 2nd Defendant's belated replying affidavit to the first motion ought to be expunged from the record. Adding in conclusion, that the third motion is incompetent, bad in law and devoid of merit, he urged the court to strike it out with costs and proceed with the delivery of the pending ruling. 6. The 1st Defendant opposed the third motion through grounds of opposition dated 25.05.2026 to the effect that the application is misconceived there being no provision under the Civil Procedure Rules (CPR) permitting the arrest or suspension of the delivery of a court ruling; that Order 36 Rule 1(b) empowers the court to enter summary judgment where no defence has been filed, and that the 2nd Defendant was duly served with the counterclaim but failed to file its defence within the prescribed time without any satisfactory explanation; and that the motion is an afterthought intended to defeat the pending ruling and allowing it would occasion substantial prejudice to the 1st Defendant. **Submissions** 1. Through submissions dated 2nd June, 2026, the 2nd Defendant asserted that the initial prayer seeking to arrest the delivery of the ruling had since become moot, the court having directed that all the pending applications be determined together in a comprehensive ruling. 2. On the prayer seeking the admission of the defence to the counterclaim out of time, counsel stated that the court has discretion to enlarge time where the interests of justice so require. Counsel cited the case of **James Kanyiita Nderitu & Another vs Marios Philotas Ghikas & Another (2016) KECA** to support the submission that in exercising its discretion to allow filing a defence out of time, the court will consider inter alia whether the proposed defence raises triable issues, the explanation for delayed filing and whether it was in the interest of justice to allow such late filing. 3. Thus, counsel reiterated that the defence raises several triable issues that following the auction of the suit property and subsequent transfer thereof to the 1st Defendant, the 2nd Defendant was discharged from its obligations; that that the 2nd Defendant had followed due process in the sale of the suit property and passed good title to the 1st Defendant; and that the 2nd Defendant was not liable for any alleged loss or fraud . 4. By way of explaining delay, counsel reiterated assertions that the 2nd Defendant was never formally served with the defence and counterclaim and only became aware of it after being served with the application for summary judgment, hence failure to file a defence within the prescribed time was neither deliberate nor inexcusable. Counsel adding that admitting the Defence would not occasion any prejudice to the other parties but would be in the interest of justice to avoid condemning the 2nd Defendant unheard. In conclusion, the 2nd Defendant’s counsel urged that the third motion be allowed. 5. The Plaintiff through submissions dated 2nd June 2026 described the third motion as lacking a procedural anchor there being no legal provision for an application for the arrest of a ruling. Arguing that the invocation of Article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act, did not aid the 2nd Defendant as these provisions do not provide a procedural basis for the relief sought. Counsel contending further that the 2nd Defendant deliberately elected not to file any response to the first motion despite being afforded an opportunity by the court during the hearing and that the third motion is an afterthought intended to reopen proceedings that have already been concluded. 6. Counsel submitted further that the 2nd Defendant was duly served with summons and had ample opportunity, over the course of more than three years, to file its defence. According to counsel, allowing the application would lead to an absurd result by disrupting proceedings that have already been fully heard. 7. Finally, counsel asserted that the 2nd Defendant's right to a fair hearing under Article 50 of the Constitution was fully realized because it participated in the proceedings before the court reserved its ruling. And that once a court has completed hearing a matter and reserved its decision, it becomes *functus officio* and lacks jurisdiction to reopen or rehear the proceedings in the absence of an express procedural framework. The application was therefore described as unknown to the law, and the court was urged to dismiss it. 8. On behalf of the 1st Defendant, counsel argued that the third motion is misconceived, frivolous and an abuse of the court process. Because, there is no provision in the Civil Procedure Act or the Civil Procedure Rules authorizing a court to suspend or arrest the delivery of a ruling. Whereas Articles 50 and 159(2)(d) of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act invoked by the 2nd Defendant, do not provide for the arrest of a ruling. In any event, the third motion does not satisfy the requirements or fall within the scope of what the common law envisages as constituting the arrest of a decision, as defined in **Sheikh & 19 Others v Elegant Holdings Limited & 6 Others (Environment and Land Case E018 of 2023) [2026] KEELC 2522 (KLR)**. 9. Asserting that the 2nd Defendant was fully aware of the proceedings having been duly served with the first motion but failed to file a defence or response to the counterclaim within the prescribed time, counsel contended that the 2nd Defendant had not satisfactorily explained its failure to defend the proceedings despite having ample opportunity to do so. According to the 1st Defendant, the omission was inexcusable, and the application is merely an attempt to avoid the consequences of its own inaction after the matter had already been heard and reserved for ruling. 10. Finally, counsel for the 1st Defendant submitted that granting the third motion would undermine the constitutional principle that justice should not be delayed and would be inconsistent with the overriding objective in Sections 1A and 1B of the Civil Procedure Act, which require the expeditious disposal of disputes. And that in the interest of justice, the 2nd Defendant’s constitutional right to a fair hearing must be balanced against the interests of all parties. The court was therefore urged to dismiss the third motion with costs and proceed to determine the pending applications as scheduled. **Analysis and Determination** 1. The court has considered the history of this matter as disclosed from material on record. With regard to the three motions, the court having considered the parties’ respective pleadings, affidavits and submissions is of the view that the issues falling for determination are whether the 1st Defendant has met the threshold for striking out the plaint and entry of summary judgment on its counterclaim (first motion); whether the Plaintiff has demonstrated grounds for striking out the 1st Defendant's defence and counterclaim and entry of judgment on admission (second motion); and finally whether the 2nd Defendant should be granted leave to defend the first motion and to file a defence to the 2nd Defendant’s counterclaim out of time (third motion). 2. The court proposes to start with the **third motion by the 2nd Defendant.** First, prayer 2 thereof seeking the *arrest of the ruling* is spent, as the ruling initially scheduled on 9.07.2026 was in any event rescheduled to another date. No useful purpose will be served by the court dealing with the disputed nomenclature *‘’arrest the ruling”* as used in prayer 2 therefore and whether such order was available to the 2nd Defendant. 3. Regarding the 3rd prayer in the third motion seeking the late admission of the 2nd Defendant's replying affidavit to the first motion, the court upon perusing the latter motion noted that it was essentially brought against the 1st Defendant. The grounds on its face and affidavit sworn in its support leave no doubt on that score. On 25.02.2026 when the respective counsel for parties made oral highlights of their written submissions before the court, counsel for the 2nd Defendant had supported the second motion, but adding the caveat regarding the alternative prayer in the counterclaim that, if any loss or damage was suffered by the 1st Defendant, the Plaintiff, and not the 2nd Defendant, was liable for any damages awarded. In the circumstances, the court was mystified that the 2nd Defendant belatedly sought to file an affidavit in reply to the first motion in which the only new material included was reference to the belated defence to the counter claim by the 1st Defendant. But there is more. ### As correctly pointed out by the 1st Defendant’s counsel, the procedure applicable where a defendant desires to make a claim against his co-defendant is not by way of a counterclaim. The procedure as found in Order 1, Rule 24 of the CPR is as follows: **‘’(1) Where a defendant desires to claim against another person who is already a party to the suit—** **(a) that he is entitled to contribution or indemnity; or** **(b) that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the action which is substantially the same as some relief or remedy claimed by the plaintiff; or** **(c) that any question or issue relating to or connected with the said subject-matter is substantially the same as some question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and the defendant and such other person or between any or either of them,** **the defendant may without leave issue and serve on such other person a notice making such claim or specifying such question or issue.** **(2) No appearance to such notice shall be necessary but there shall be adopted for the determination of such claim, question or issue the same procedure as if such other person were a third party under this Order.** **(3) Nothing contained in this rule shall operate or be construed so as to prejudice the rights of the plaintiff against any defendant to the action’’.** 1. On the other hand, with regard to set-off and counterclaim Order 7 Rule 3 of the CPR provides that: **‘’A defendant in a suit may set-off, or set-up by way of counterclaim against the claims of the plaintiff, any right or claim, whether such set-off or counterclaim sound in damages or not, and whether it is for a liquidated or unliquidated amount, and such set-off or counterclaim shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit, both on the original and on the cross-claim; but the Court may on the application of the plaintiff before trial, if in the opinion of the court such set-off or counterclaim cannot be conveniently disposed of in the pending suit, or ought not to be allowed, refuse permission to defendant to avail himself thereof’’.** 1. Therefore, whereas the 1st Defendant could properly bring a counterclaim against the Plaintiff herein, the procedure to be adopted regarding any claim intended as against its co-defendant, the 2nd Defendant, is as prescribed in Order 1 Rule 24 of the CPR, and not via a counterclaim. Therefore, notwithstanding the alternative prayer in the counterclaim, no judgment could properly be entered in favour of the 1st Defendant as against the 2nd Defendant on the basis the counterclaim. In the court’s view, that would have been the legal objection taken by the 2nd Defendant in opposition to the first motion, if indeed the prayers therein were also targeted at the 2nd Defendant, which evidently they were not. 2. The foregoing settles the issue of the prayers 3 and 4 in the third motion seeking admission of the 2nd Defendant’s replying affidavit to the first motion and defence to the counterclaim. The prayers are to no avail. They are as misconceived as they are superfluous and if granted, would only serve to perpetuate the irregularity commenced via the lodging of the 1st Defendant’s purported counterclaim against the 2nd Defendant, rather than a notice under Order 1 Rule 24 of the CPR. The **third motion is** without merit and must fail**.** 3. The court will now turn to **the first motion** by the 1st Defendant expressed to be brought pursuant to section 6 and 7 of the CPA on pleas of *sub judice* and *res judicata*; Order 2 Rule 15(1) (a), (d) CPR on pleading disclosing no reasonable cause of action or defence in law, or otherwise an abuse of the process of the court; and Order 36 Rule 1(b) on summary judgment. 4. Order 2 Rule 15 (1) provides that; - **‘’(1) At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—** **(a) it discloses no reasonable cause of action or defence in law; or** **(b) …** **(c) ….** **(d) it is otherwise an abuse of the process of the court,** **and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.** **(2) No evidence shall be admissible on an application under sub rule (1) (a) but the application shall state concisely the grounds on which it is made.** **(3).....’’** 1. The principles governing applications for striking out of pleadings were spelt out by **Madan JA** (as he then was) in **D.T. Dobie & Company (Kenya) Limited** (supra). The Court stated therein that: **“A court of justice should aim at sustaining a suit rather than terminating it by summary dismissal. Normally a lawsuit is for pursuing it.** **No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable *c*ause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.”** 1. These principles have held sway in subsequent years and have been applied consistently in our jurisdiction. In **Kivanga Estates v National Bank of Kenya Limited [2017]** **eKLR,** for instance, the Court of Appeal echoing the dicta in **D.T Dobie (supra) stated; -** **“It is not for nothing that the jurisdiction of the court to strike out pleadings has been described variously as draconian, drastic, discretionary, a guillotine process, summary and an order of last resort. It is a powerful jurisdiction capable of bringing a suit to an end before it has even been heard on merit. Yet a party to civil litigation is not to be deprived lightly of his right to have his suit determined in a full trial. The rules of natural justice require that the court must not drive away any litigant from the seat of justice, without a hearing, however weak his or her case may be. The flip side is that it is also unfair to drag a person to the seat of justice when the case against him is clearly a non-starter. The exercise of the power to strike out pleadings must balance these two rival considerations … Striking out a pleading though draconian, the Court will in its discretion resort to it, where, for instance the court is satisfied that the pleading has been brought in abuse of its process or where, it is found to be scandalous, frivolous and vexatious”.** See also: - **Crescent** **Construction Co. Ltd v. Delphis Bank Ltd [2007] eKLR** . 1. There is no dispute that the present suit emanates from the sale in July 2021 and transfer in December 2021 to the 1st Defendant of the property identified as **LR No. Ngong/Ngong/3362** (the suit property) previously charged together with **LR. No. Ngong/Ngong 24258** (hereafter the additional security), in favour of the 2nd Defendant, to secure a facility advanced to the Plaintiff; that prior to the sale, the Plaintiff had filed several suits in a bid to stop the sale of the suit property and the additional security. Including the now determined (by dismissal for want of prosecution) **Kajiado HCC No.44 of 2018** where an interim injunction was denied by **Nyakundi J,** a decision upheld by the Court of Appeal judgment in **Civil Appeal No. 129 of 2019** delivered on 17.04.2025. It appears that the Plaintiff’s earlier **Civil Application No. 3 of 2019** in the Court of Appealseeking to stay the ruling of **Nyakundi J** and an injunction pending appeal to the same court, had been dismissed 18.10.2019. 2. Thereafter , vide a motion dated 17.08.2021 in **ELC No.10 of 2021** obtained interim orders to restrain the 2nd Defendant and **Garam Investment Auctioneers** from selling the charged property which orders were subsequently extended until 2022. Although the Plaintiff has been reticent on the fate of that motion and suit, it filed the present suit on 11.04.2022 seeking to nullify the transfer of the suit property, the sale having been conducted by public auction in July 2021. 3. The pleadings and orders annexed to the first motion filed in this cause on 11.04.2022 indicate that the 1st Defendant was not a party to the **ELC** case. However, the key plank in the plaint herein is that the 1st Defendant transferred the suit property in its favour during the subsistence of interim orders in **ELC No. 10 of 2021**. A matter disputed by the 1st Defendant, asserting that the transfer of the suit property was lawful, and was preceded by a lawful public auction in which the 1st Defendant successfully bid for the property, paid the deposit and thereafter the balance of the purchase price. The 1st Defendant also disputes the jurisdiction of this court to grant the relief seeking to nullify the transfer of the suit property as contained in the plaint. 4. The issues arising from the pleadings are therefore questions of law and fact requiring judicial consideration on evidence. A pleading that raises even a single bona fide triable issue cannot qualify as hopeless or irredeemable and ought to be allowed to proceed to trial. In the court’s view therefore the plaint appears to raise triable issues and cannot be said to disclose no reasonable cause or otherwise an abuse of the process of the court. 5. In **Yaya Towers Limited v Trade Bank Limited (In Liquidation) [2000] eKLR** the Court of Appeal expressed itself in the following manner: **“A plaintiff is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the 1st Defendant can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the Court, it must be allowed to proceed to trial....It cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the process of the Court. It is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases, and its exercise would not be justified merely because the story told in the pleadings was highly improbable, and one, which was difficult to believe, could be proved.”** 1. With regard to the *res judicata* plea, it is difficult on the facts of the case to say that issues raised by the present suit have already been litigated and settled in previous litigation. The doctrine of *res judicata*, is codified in Sections 7the Civil Procedure Act, which provides that: - **“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.’’** 1. The Court of Appeal in the case of **Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR,** addressing itself to foregoing provision, stated that; - **“Res judicata is a matter properly to be addressed in limine as it does possess jurisdictional consequence because it constitutes a statutory peremptory preclusion of a certain category of suits. That much is clear from Section 7 of the Civil Procedure Act, 2010.** **………………………………..** **Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms;** **(a) The suit or issue was directly and substantially in issue in the former suit.** **(b) That 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.** **(e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”** 1. Based on material canvassed before it, the court is of the considered view that the present suit while in part premised on a cause of action having common roots with the action in **HCC No. 44 of 2018,** is in addition anchored on possible recently accrued cause of action. Therefore, it cannot be said to be *res judicata*. However, the multiplicity of suits brought by the Plaintiff out of the cause of action with a common root is conduct to be deprecated, as it obfuscates proceedings and causes delay. That said, the invocation of section 6 of the CPA by the 1st Defendant, would, in light of the apparent subsistence of **ELC No. 10 of 2021** appear justified, more so as the orders cited in the plaint originated from that suit, and any contravention thereof ought to be addressed in that cause. 2. The *sub judice* doctrine is codified in Sections 6the Civil Procedure Act which provides that: - **“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. The foregoing provision was considered by the Supreme Court in the case of **Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] eKLR** the Court expressing itself as follows: - **“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.”** 1. On this score, the 1st Defendant’s position in respect of the present suit appears justified. The Plaintiff’s suit is caught up by the doctrine of *res sub judice.* The court will therefore partially allow thefirst motionwhile proceeding to make appropriate orders. 2. Also invoked in the first motion was Order 36 Rule (1) (b) of the CPR in support of the prayer for summary judgment . Order 36 Rule 1 of the CPR is in the following terms : **‘’In all suits where a plaintiff seeks judgment for—** **(a) a liquidated demand with or without interest; or** **(b) the recovery of land, with or without a claim for rent or mesne profits, by a landlord from a tenant whose term has expired or been determined by notice to quit or been forfeited for non-payment of rent or for breach of covenant, or against persons claiming under such tenant or against a trespasser,** **where the defendant has appeared but not filed a defence the plaintiff may apply for judgment for the amount claimed, or part thereof, and interest, or for recovery of the land and rent or mesne profits.** **(2)The application shall be supported by an affidavit either of the plaintiff or of some other person who can swear positively to the facts verifying the cause of action and any amount claimed.** **(3)Sufficient notice of the application shall be given to the defendant which notice shall in no case be less than seven days.** 1. On its reading of the pleadings and facts of the case, the court is not satisfied that this is a proper case for the entry of summary judgment under the Rule cited, and in addition, despite the Plaintiff not having filed a defence, it has availed itself of the procedure in Order 36 Rule 2 CPR which states that ***‘’The defendant may show either by affidavit, or by oral evidence, or otherwise that he should have leave to defend the suit.’’***. By affidavit evidence, the Plaintiff has raised foundational averments relating to its own cause that appear to bring this case outside the scope of Order 36 Rule 1 (b) CPR. As a potential defence, these averments cannot not be described as fanciful or hopeless, but rather, as raising bona fide triable issues. Therefore entitling the Plaintiff to the right to defend the counterclaim. As stated herein, the court found partially merit in **the first motion**. 2. The **second motion** by the Plaintiff is premised on Order 2 Rule 15 (1) and Order 13 Rule 2 of the CPR which govern applications for striking out of pleadings, in this case the 1st Defendant’s defence, as sought in the first prayer, and for judgment on admission respectively, as sought in the second prayer. The former Rule and related judicial pronouncements have been discussed elsewhere in this ruling with regard to the first motion. The court having looked at the defence and counterclaim is persuaded that the defence raises substantive questions concerning the validity of the auction, the effect of registration, the Plaintiff's remedies and the respective liabilities of the Defendants. These are substantial matters that ought to be ventilated at a trial. 3. As regards the propriety of a counterclaim lodged against a co-defendant, the court has already addressed it, and the cure cannot be the striking out of the entire pleading when it can potentially be salvaged by way of amendment. On the authority of **D.T. Dobie** (supra) and **Yaya Towers Limited** (supra) the first prayer in the second motion does not lie. 4. Concerning the prayer for judgment on admission, Order 13Rule 2 of the CPR is in the following terms: **‘’Any party may at any stage of a suit, where admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just**.’’ 1. For judgment to be entered against a party on admission, the admission must be clear, unequivocal, and unconditional. As stated by **Madan JA** (as he then was) regarding entry of judgment on admission under Order XII rule 6 CPR, now Order 13 Rule 2 CPR in **Choitram & Another V Nazari (1984) KECA 47 (KLR):** **‘’18. To entitle a party to judgment admissions must be clear. Judgment should be given under order XII rule 6 only in a very plain case.** **19. In this case I am asked to analyse the pleadings, the correspondence and other documents and apply the relevant law to determine whether or not admissions are disclosed entitling the plaintiffs to specific performance and damages. 20. It is very far from being a plain case. Order XII rule 6 was not intended to be used in this way. The application goes far beyond what is envisaged. It is dismissed with costs to the respondent.” Order XII rule 6 reads: - 6. ...”** **21. For the purpose of order XII rule 6, admissions can be express or implied either on the pleadings or otherwise, eg in correspondence. Admissions have to be plain and obvious, as plain as a pikestaff and clearly readable because they may result in judgment being entered. They must be obvious on the face of them without requiring a magnifying glass to ascertain their meaning. Much depends upon the language used. The admissions must leave no room for doubt that the parties passed out of the stage of negotiations onto a definite contract. It matters not if the situation is arguable, even if there is a substantial argument, it is an ingredient of jurisprudence, provided that a plain and obvious case is established upon admissions by analysis. Indeed, there is no other way, and analysis is unavoidable to determine whether admission of fact has been made either on the pleadings or otherwise to give such judgment as upon such admissions any party may be entitled to without waiting for the determination of any other question between the parties. In considering the matter, the judge must neither become disinclined nor lose himself in the jungle of words even when faced with a plaint such as the one in this case. To analyse pleadings, to read correspondence and to apply the relevant law is a normal function performed by judges which has become an established routine in the courts. We must say firmly that if a judge does not do so, or refuses to do so, he fails to give effect to the provisions of the established law by which a legal right is enforced. If he allows or refuses an application after having done so that is another matter.’’** 1. The learned Judge of Appeal concluded by stating that**:** **‘’In a case under order XII rule 6 he has then exercised his discretion for the order he makes falls within the court’s discretion. The only question then would be whether the judge exercised his discretion properly either way. If upon a purposive interpretation of either clearly written or clearly implied, or both, admissions of fact the case is plain and obvious there is no room for discretion to let the matter go to trial for then nothing is to be gained by having a trial. The court may not exercise its discretion in a manner which renders nugatory an express provision of the law.** **22. The best exposition of rule 6 which I have met so far comes from Roskill LJ in a case in which the order ought to have been refused, i.e. in Technistudyv Kelland [1976] 1 WLR 1042 at page 1046 where he said: *Order should only be made under the rule (English equivalent) if it is plain that there are either clear express, or clear implied, admissions. I can see no clear admissions or clear implied admissions”*.** See also **Odera t/a Odera & Associates vs Machira t/a Machira & Co. Advocates (2013) KECA 208(KLR).** 1. A judgment on admission can only be entered where the admission is plain, obvious and unequivocal. The alleged admissions at paragraph 20 of the defence and counterclaim cited by the Plaintiff consist of averments pleaded in the alternative, and directed against the 2nd Defendant. Secondly, the admissions are not *ex facie* admissions by which the 1st Defendant is owning personal liability but rather making certain imputations against the 2nd Defendant. Read as a whole, however the tenor of defence and counterclaim is essentially a denial of the 1st Defendant’s liability to the Plaintiff, while alternatively seeking indemnity should such liability ultimately be established. The **second motion** is equally without merit and must fail. 2. In the result, the court makes the following orders: 3. **That the second and third motions by the Plaintiff and 2nd Defendant, respectively, are without merit and are hereby dismissed with costs.** 4. **That the first motion by the 1st Defendant has substantially failed and only succeeded to the limited extent that, the court will in accordance with the provisions of Section 6 of the CPA order that, given the age of the present suit, the suit is hereby stayed for a period of 9 (nine) months from today’s date, pending the prosecution of ELC No. 10 of 2021.** 5. **That at the expiry of 12 (twelve) months from the date of this order, (that is on 7.08.2027) the plaint filed herein and dated 11.04.2022 will stand automatically struck out with costs to the Defendants.** **DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 7TH DAY OF AUGUST 2026** **C. MEOLI** **JUDGE** **In the presence of:** **For the Plaintiff: Mr. Muinde** **For the 1st Defendant: N/A** **For the 2nd Defendant: Ms. Kawon h/b for Mr. Oyando** **C/A: Lepatei**