https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7576

Stansha Limited v Co-operative Bank of Kenya Limited & another (Commercial Case E116 of 2025) [2026] KEHC 7576 (KLR) (Commercial and Tax) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7576 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E116 of 2025 PM Mulwa, J May 28, 2026 Between Stansha Limited Plaintiff and Co-operative Bank of Kenya Limited 1st Defendant Regent Auctioneers 2nd Defendant Ruling 1.The 1st Defendant/Applicant moved the Court vide the Notice of Motion dated 1st August 2025, brought under Sections 1A, 1B, 3A and 6 of the Civil Procedure Act, seeking orders striking out and/or dismissing the Plaintiff’s suit on the ground that it is sub judice, together with costs. 2.The application is supported by the affidavit of Kennedy Odhiambo Otiato sworn on 1st August 2025. The deponent avers that the Plaintiff previously instituted Milimani HCCOMM No. E399 of 2024 against the 1st Defendant and another auctioneer in respect of the same suit property and arising from the Bank’s exercise of its statutory power of sale. He stated that the present proceedings constitute forum shopping and an abuse of process; and that this Court in a ruling delivered 4th March 2025, found that certain earlier proceedings in this matter offended the doctrines of res judicata and sub judice. 3.The Plaintiff opposes the application. In grounds of opposition dated 21st January 2026, the Plaintiff contends that the present suit is distinct from Milimani HCCOMM No. E399 of 2024 because the 2nd Defendant, Regent Auctioneers, was not a party to the earlier proceedings and because the present suit raises fresh issues concerning the legality and regularity of notification of sale, valuation of the suit property and the conduct of the auction process. 4.The parties canvassed the application by way of written submissions, which I have considered alongside the application and the affidavit. The sole issue falling for determination is whether the present suit is sub judice. 5.The doctrine of sub judice is anchored under Section 6 of the 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.” 6.The requirements for the doctrine to apply are well established: (i) there must be two or more suits filed consecutively; (ii) the matter in issue must be directly and substantially the same in both suits; (iii) the parties must be the same or litigating under the same title; and (iv) the prior suit must be pending before a court of competent jurisdiction. 7.The object of the doctrine is to prevent multiplicity of suits and guard against conflicting decisions by courts of concurrent jurisdiction. 8.By my ruling of 4th March 2025, I found sub judice in respect of the notice of motion dated 18th February 2025 in these proceedings, which sought injunctive relief to restrain the exercise of the statutory power of sale over L.R. 3734/63. 9.It is not disputed that Milimani HCCOMM No. E399 of 2024 is pending between the Plaintiff and the 1st Defendant and concerns the same charged property and the Bank’s exercise of its statutory power of sale. Those facts satisfy the first and fourth requirements of the doctrine. 10.The Plaintiff’s argument that the present suit is distinct because the 2nd Defendant was not a party to the earlier suit, and because fresh complaints about notification, valuation and auction conduct are pleaded, was considered. However, in determining sub judice the Court looks to substance not form. The gravamen of both actions is the Bank’s exercise of the statutory power of sale over the same property and the relief sought in both suits is injunctive and declaratory relief aimed at preventing sale and transfer pending resolution of the dispute. 11.The additional allegations concerning valuation, notification and the conduct of the auctioneer are incidental to and arise from the same transaction and process of realization of the charged property. The mere addition of a party or the framing of additional particulars does not alter the substantive identity of the dispute where the essential matter in issue is directly and substantially the same. (See Thiba Min Hydro Co. Ltd v Josphat Karu Ndwiga [2013] eKLR). 12.Allowing parallel proceedings would expose the parties to multiplicity of suits and the real risk of conflicting orders by courts of concurrent jurisdiction. Having examined the pleadings and affidavits, I am satisfied that the matter in issue in the present suit is directly and substantially in issue in the previously instituted Milimani HCCOMM No. E399 of 2024. 13.Accordingly, the Notice of Motion dated 1st August 2025 succeeds. 14.It is hereby ordered that:a.The present suit is dismissed for being sub judice HCCOMM No. E399 of 2024.b.Costs will be to 1st Defendant. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 28TH DAY OF MAY 2026.P.M. MULWAJUDGEIn the presence of:Mr. Momanyi for Plaintiff/RespondentMs. Njeru h/b for Mr. Munene for Defendant/ApplicantCourt Assistant: Lispa