https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6993

Sumac Microfinance Bank Ltd v Clegane Horizones Ltd & 2 others (Miscellaneous Civil Application E235 of 2024) [2026] KEHC 6993 (KLR) (Civ) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 6993 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Miscellaneous Civil Application E235 of 2024 JN Mulwa, J May 21, 2026 Between Sumac Microfinance Bank Limited Applicant and Clegane Horizones Limited 1st Respondent Dakar Exporters (K) Limited 2nd Respondent Mazel Investment Company Limited 3rd Respondent Ruling 1.There are two applications before the court for determination dated 20/09/2024 and 24/09/2024. 2.The first application dated 20/09/2024 is brought by the Applicant Bank in which it seeks several reliefs notably:–1.That this Honourable court be pleased to issue an order to the effect that Mr. Ian Nyangau Nyanchoga lied user oath through his supporting affidavit dated 15th may, 2024.2.This Honourable court be pleased to vacate/discharge the stay of execution order dated 17th Day 2024 and the temporary stay of execution order issued on 19th June, 2024.3.That upon issuance of Order two (2) above, this honourable court be pleased to issue an order releasing the Kshs. 7,341,106.00. deposited in this court as security to the 1st Respondent and/or to its Advocates in satisfaction of the decree dated 11th March, 2024.4.That the costs of this application be borne by the Applicant herein. 3.The second application is dated 24/09/2024 also brought by the Bank seeks an order directing that the sum of Kshs. 7,341,106/= it deposited in court as security, vide invoice dated 27/05/2024 be released to the Applicant with costs being in the cause. 4.By a Preliminary Objection to the motion dated 20/09/2024, the 1st Respondent Clegane Horizons Limited challenged this court’s jurisdiction to entertain the application dated 20/09/2024 on grounds that the court is functus officio following withdrawal of the Applicant’s (Sumac Bank) application dated 15/05/2024. 5.By a ruling on the preliminary objection dated 6/11/2025 this court dismissed the Preliminary Objection, paving way for hearing and consideration of the two applications, upon which the parties filed submissions and proceeded to highlight the same. 6.The two applications are interrelated. They will be interrogated and determined simultaneously. Application Dated 24/09/2026 7.Sumac Microfinance Bank Limited sought release of security it deposited in court pursuant to an ex-parte decree obtained by the 1st Respondent on 21/02/2024 in the sum of Kshs. 7,341,106/= as a conditional stay of execution against its assets. It is dated 18/06/2024, pending hearing of an application dated 15/05/2024. 8.It is instructive to note that by an order of the trial court Hon. C. Ogweno issued on 12/09/2024, the ex-parte judgment and decree in the lower court, were set aside and directed that the suit, thereof, CMCC/No E3649 of 2023 subject of the execution proceedings proceed to full hearing on merit. 9.Additionally, It is the Applicant’s submission that having withdrawn its applications it had filed including the application for re-instatement its motion dated 15/05/2024, there was nothing more or in force for the continued holding of its deposit in court, hence its prayers for release of the deposit back to itself, citing the case of Gachu & Another v. Manyeki & Another [2024] eKLR, KHC 5621(KLR), whereof the court held that-“… A withdrawal amounts to a discontinuance, which is an action that has finality. In the consequence, the suit dissipates and there is nothing left before the court to act upon”. 10.The superior court’s in the case of Priscilla Nyambura Njue v. Geovhem Middle East Ltd, Kenya Bureau of Standards (interested Party) (2021) eKLR citing the case of Smt. Rais Suiltan Began v. Abdul Qadir & Others affirmed the decision that:“The consequence of an act of withdrawal is that the plaintiff ceases to be a plaintiff, the said suit comes to an end, and nothing remains pending before the court”. 11.The above citations among others affirm that once the court’s supervisory jurisdiction over the subordinate courts under Article 165(6) of the Constitutions is overtaken by events to wit, setting aside of its own judgment and decree on 12/09/2024, and the eventual withdrawal of its applicants them dated 15/5/2025 and 25/09/2024, there remained nothing on record for this court to entertain, thus it became functus officio. 12.That said therefore any matter or application filed prior to the withdrawal of the applications, to wit, 25/09/2024, have no force of law as they became automatically void, and any act on the void application in this case is null and nothing is expected on it as held in above decisions. 13.The case of Macfoy v United African Limited (1961) 3ALL E. R 1169 at 1172, cited with approval by the court of Appeal in Ochieng & 2 others v. Ompango (Civil Appeal 158 of 2019 (2024) KECA 201 (KLR) (23 February 2024) where Lord Denning 06 served that:-“If an act is void, then it is in law a nullity and cannot be a mere irregularity. It is not only bad but also incurably bad. There is no need for an order of the court to set it aside ….” 14.Having the above sediments and learned observations by the superior courts, in reserve, the court agrees with the applicant that prayer 1 of its motion dated 24/09/2024 is well deserved. Motion Dated 20/09/2024. 15.The Applicant seeks orders as stated verbatim at paragraph 3 of this ruling. Of relevance, here is prayer 3, couched in same manner as at prayer 1 at its motion dated 24/09/2024 being on order to release the sum of Kshs. 7,341,106/= to itself after the judgment and decree on the subordinate court were set aside by the said court on 12/09/2024. 16.I need not belabor further on this, as I believe I have already rendered myself sufficiently on the subject above. The prayer no. 3, is allowed as prayed. 17.Concerning prayer 2 as to whether the court ought to vacate and or discharge the stay of execution orders dated 17/03/2024 and 19/06/2024 having made a finding that by the notice of withdrawal by the applicant on 25/09/2024 of all pending applications in the matter, and the motion under review dated 20/09/2024 being one of them, it too suffered the same fate; it was withdrawn alongside all others pending as at 25/09/2024 as seen from the decisions in the cases of Priscilla Nyambura Njue (supra); Charles Kiptarai Birech v. Paul Waweru Mbugua & Another [2021] eKLR (supra); and Macfoy v United African Limited (supra). 18.Once a suit or application is withdrawn, it ceases to be and nothing remains pending before the court to determine as held in the above case decisions. 19.Additionally, in Nicholas Kiptoo Arap Korir Salat v. IEBC & 7 Others (2013) eKLR the Supreme Court reiterated that-“Withdrawal of a suit is itself its end. A party’s right to withdraw a matter before the court cannot be taken away. A court cannot bar a party from withdrawing his matter…”In the end, the court has nothing to interrogate in the motion dated 20/09/2024. 20.In respect to prayer 1 of the motion, I am minded that the Applicant seeks an order to issue that one Ian Nyangau Nyanchoga, Advocate for the Respondent lied on oath in his supporting affidavit sworn on 11/03/2024 in support of the 1st Respondents motion dated 15/05/2024 upon which depositions the court stayed execution proceedings against the 1st Respondent of its judgment and decree dated 11/03/2024. 21.As to whether or not the Advocate lied to the court through his affidavit, an enquiry and or investigation ordered by the court prompted by the Applicant to issue an order for investigation issued on 27/02/2025 in exercise of its inherent powers to prevent abuse of court process. 22.I have perused the investigation report from the National police Service - Directorate of Criminal Investigations DCI) Exhibit “TM -2” the 1st Respondents further affidavit.Despite the findings and the offense being of a criminal nature, it is upon the DCI and the Complainant, Mr. Titus Makhanu, Advocate for the 1st Respondent to pursue the DCI for action on the report. 23.In summation, this court finds merit in the Applicant’s (Samac Microfinance Bank Ltd) in both applications dated 24/09/2024 and 20/09/2024 to be merited in terms of prayer 3 and 1 respectfully. 24.In the end, an order is issued that the sum of Kshs. 7,341,106/= deposited in court by Sumac Microfinance Bank Limited (Applicant) vide Judiciary invoice dated 27/05/2024 be released to the Applicant- Bank Sumac Microfinance Bank Limited through its Advocates on record for onward transmission to the Applicant. 25.The Applicant shall bear own costs of the two applications.Orders accordingly. DELIVERED DATED AND SIGNED AT NAIROBI THIS OF 21ST MAY 2026.........................JANET MULWA.JUDGE