https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8645

Swift Energy Distributors Ltd v Proto Energy Ltd & another (Commercial Case E348 of 2023) [2026] KEHC 8645 (KLR) (Commercial and Tax) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 8645 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E348 of 2023 JWW Mong'are, J June 19, 2026 Between Swift Energy Distributors Limited Plaintiff and Proto Energy Limited 1st Defendant Premier Bank Kenya Limited 2nd Defendant Ruling Introduction and Background 1.By the Notice of Motion dated 3rd June 2025, the 1st Defendant (“Proto Energy”) seeks the court to enter summary judgment against the 2nd Defendant(“the Bank”) for Kshs.30,000,000.00/= being the last unpaid instalment of a bank guarantee and as prayed for in its Statement of Defence and Counterclaim dated 11th June 2024. The application is supported by grounds on its face and the supporting affidavit of its Head of Legal, Wambui Maina, sworn on 3rd June 2025. 2.The 2nd Defendant (“the Bank”) opposes the application through the Notice of Preliminary Objection and Grounds of Opposition all dated 27th October 2025 and the replying affidavit sworn on 20th January 2026 by its Legal Manager Claris Ogombo. The parties have filed written submissions in respect of the Objection and the application that I have considered together with all the other pleadings and I will make relevant references to them in my analysis and determination below. Analysis and Determination 3.I propose to first deal with the Bank’s Objection where it avers that the subject matter of this suit, that is, the Kshs.30,000,000.00/=, is already pending determination in another case, HCCOMM E504 of 2023; Proto Energy Limited v Swift Energy Distributors Limited before this court and this matter is therefore res sub judice. That the issue of the Kshs.30,000,000.00/= has already been finally determined by this court (Mulwa J.,) which issued a consent order on 24th September 2024 in HCCOMM E518 of 2018; Swift Energy Distributors Limited v Premier Bank Kenya Limited and therefore this matter is res judicata. As such, the Bank states that that Proto Energy's application is an abuse of court process, vexatious, and a nullity because the Kshs.30,000,000.00/= was already released to the Plaintiff (“Swift Energy”) pursuant to Justice Mulwa's order and by complying with that order, the Bank was fully discharged from any liability regarding that sum. It thus accuses Proto Energy of trying to re-litigate a settled issue through a multiplicity of suits. 4.Even though the parties have argued the merits of the Objection, I note that neither of them remembered that for one to succeed in putting forth a Preliminary Objection, the facts pleaded by the other party are assumed to be correct; it must be a matter of law which is capable of disposing off the suit; it must not be blurred by factual details calling for evidence and it must not call upon the Court to exercise discretion(see Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd. (1969) EA 696). This court has always held that issues of res sub-judice and res judicata are not pure points of law capable of being considered as preliminary objections properly raised and they do not meet the litmus test of what in law amounts to a preliminary objection (see Cyrus Mucebiu Irungu v Martha Wanjiru Irungu & another [2022] KEELC 810 (KLR)]. In George Kamau Kimani & 4 others v County Government of Trans-Nzoia & another [2014] KEELC 104 (KLR), the court, while discussing a challenge of res judicata by way of a preliminary objection stated as follows:‘One cannot raise a ground of res judicata by way of preliminary objection. The best way to raise a ground of res judicata is by way of notice of motion where pleadings are annexed to enable the court to determine whether the current suit is res judicata. Professor Sifuna did not raise the issue of res judicata by way of notice of motion. Professor Sifuna only annexed a ruling in respect of a case which was struck out. This is not a proper way of raising the issue of res judicata. The other points raised in the preliminary objection are issues which require ascertainment of facts by way of evidence. They cannot be brought by way of preliminary objection. 5.To determine whether the issues in this case are directly and substantially the same or have been determined in the other suits, the court would need to examine the pleadings, compare the reliefs sought, ascertain whether the earlier suit was filed first and is still pending and peruse the ruling to determine if the subject matter has finally been determined by a court of competent jurisdiction. These are not pure points of law as they require factual investigation and production of evidence which are not allowed in a preliminary objection. 6.In any event, I note that the Bank has raised the same in its responding deposition where evidence can be annexed. On this matter being res sub judice HCCOMM E504 of 2023, the parties agree that section 6 of the Civil Procedure Act 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. 7.Proto Energy has rightly submitted that the Supreme Court in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR) addressed the doctrine of res 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. 8.On res judicata, the principles are also common to the parties and germane is section 7 of the 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 can 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. 9.Therefore, for the doctrine of res judicata to apply; the issue was directly and substantially in issue in the former suit; the former suit was between the same parties or parties under whom they or any of them claim; the parties were litigating under the same title; the issue was heard and finally determined in the former suit; and the court that previously heard and determined the issue was competent to try the suit in which the issue is raised (see Gichuki v Gichuki [1982] KECA 37 (KLR) and Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] KECA 477 (KLR)]. It is also not lost that the same principles apply with equal force to applications and the Court of Appeal, in Uhuru Highway Development Limited v Central Bank of Kenya, Exchange Bank Ltd (Involuntary Liquidation) & Kamlesh Mansukhlal Pattni [1996] KECA 102 (KLR) held that “…..once an application for injunction within a suit has been heard and determined under the principles laid down in Giella v Cassman-Brown, a similar application cannot be brought unless there are new facts, not brought before the court earlier after exercise of due diligence, which merit a re-hearing and possible departure from the previous ruling.” 10.The Supreme Court, in Kenya Commercial Bank Limited & another v Muiri Cofee Estate Limited & 3 others [2016] KESC 6 (KLR) summed it all up by stating that the doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to Court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the Courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively. 11.For res sub judice to apply, the suits must be between the same parties or their representatives. Going through the pleadings in HCCOMM E504 of 2023, the Bank is not a party to that suit which is solely between Proto Energy and Swift Energy. The issues therein, while overlapping, are not directly and substantially the same. In HCCOMM E504 of 2023, the Kshs.30,000,000.00/= is but a component of a larger debt claimed from Swift Energy. In the present application, Proto Energy claims the Kshs. 30,000,000.00/= directly from the Bank as an independent obligation under a guarantee. The legal basis and the party from whom the money is sought are different and it is therefore my finding that doctrine of res sub judice does not apply. 12.On this matter being res judicata HCCOMM E518 of 2018, the consent judgment therein was a final, binding determination between Swift Energy and the Bank. Clause 1 of the said judgment provides that the Bank was to release the Kshs.30,000,000.00/= to Swift Energy under the subject guarantee and Clause 4 of that judgment explicitly states that Swift Energy "shall fully, completely and forever discharge and release the [Bank] from all and further obligations or liability" relating to the Kshs.30,000,000.00/=. The Bank avers that it has already complied with this order and it argues that Proto Energy cannot obtain a summary judgment that would force it to pay the same Kshs.30,000,000.00/= again. 13.I am inclined to agree with Proto Energy that the doctrine requires that the parties in the former suit be the same as or in privity with the parties in the present suit. Proto Energy was not a party to HCCOMM E518 of 2018 and the fact that the funds originated from a guarantee for Proto Energy's benefit does not automatically make it a party to the bank-customer dispute between Swift Energy and the Bank. Therefore, Proto Energy is not legally barred from arguing that it is still owed the money by the Bank. I will therefore find and hold that res judicata does not apply to Proto Energy and it does not bar its claim against the Bank. 14.My findings above mean that the Bank’s Objection is dismissed and I now turn to determine the merits of the application on whether summary judgment ought to be entered in favour of Proto Energy against the Bank. The parties agree that summary judgment is provided for under Order 36(1) of the Rules which states:36(1)In all suits where a plaintiff seeks judgment for—a.a liquidated demand with or without interest; orb.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. [Emphasis mine] 15.Whereas the Bank has deponed that a summary judgment above only applies in situations where the defendant has appeared but has not filed a defence and that since it has filed a defence, then summary judgment does not apply, I note that the Court of Appeal in Ternic Enterprises Limited v Waterfront Outlets Limited [2018] KECA 764 (KLR) held that in determining whether or not to enter summary judgment, the court should look at the defence to determine whether it raises a triable issue. The late Majanja J., in Challenger Trade Finance Segregated Portfolio of the South Africa SPC v Danish Brewing Company E.A. Limited & 3 others [2021] KEHC 7332 (KLR) held that to find that an application under Order 36 Rule 1 is incompetent merely because it was filed after a defendant has filed a statement of defence is to elevate a technicality to a fetish contrary to Article 159 of the Constitution which requires the court to determine matter without undue regard to technicalities. 16.Going through the Bank’s defence to the counterclaim, I am inclined to agree that it raises several defenses that are not frivolous or a sham and that these issues require a full trial to resolve. The first is the legal effect of the consent judgment in HCCOMM E518 of 2018 on the Bank's obligation to Proto Energy and whether the same legally extinguished the Bank's liability to all parties, including Proto Energy. Second is whether the Bank's obligation become unconditional and crystallized upon the original demand in March 2023, or whether it was contingent on a valid demand being made during the currency of the second guarantee which expired on 11th September 2023. This essentially requires an interpretation of the bank guarantee. Lastly is whether the court orders restraining payment merely suspended the Bank's obligation or extinguished it and the court will be called to determine the legal position on when a guarantee expires while such orders are in place. Further, what then happens if the Bank has already paid Swift Energy the sums under the guarantee and no longer holds the guaranteed sums? Has it been legally discharged from all claims in respect of the subject guarantee? Such issues deserve ventilation at a full trial and the Bank is entitled to defend the counterclaim by raising the said defences. Conclusion and Disposition 17.In the foregoing, the 1st Defendant’s application dated 3rd June 2025 is dismissed with costs being the cause. DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 19TH DAY OF JUNE 2026..................................J.W.W. MONGAREJUDGEIn the Presence of1. Ms. Gitonga holding brief for Mr. Madowo for the Plaintiff/ Applicant.2. Mr. Muyove for the 2nd Defendant/ Respondent.3. Ms. Gathara holding brief for Mr. Kabugu for the 3rd Defendant.4. Amos- Court Assistant