https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9205

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL & TAX DIVISION** **SUIT NO. E366 OF 2025** **TOROBO LIMITED………………………PLAINTIFF/RESPONDENT VERSUS** **PREMIER BANK LIMITED…………1ST DEFENDANT/APPLICANT** **REGENT AUCTIONEERS..............2ND DEFENDANT/APPLICANT** **RULING** 1. Before this court for determination are three applications. **The Defendant's undated Notice of Motion** (reflecting 24th June 2025) and the Plaintiff’s applications dated 30th May 2025 and 29th August 2025 respectively. 2. The applications were canvassed by way of written submissions. 3. I have carefully considered the applications, the replying affidavits, annexures and the submissions made by the parties’ respective advocates. The following issues arise for determination: 4. *Whether the 1st Defendant's undated application to set aside the ex parte orders is procedurally competent.* 5. *Whether the Plaintiff's suit is sub judice and should be stayed pursuant to Section 6 of the Civil Procedure Act.* 6. *Whether the ex-parte orders of 5th June 2025 should be reviewed, set aside* 7. *Whether the Plaintiff has established a prima facie case with a probability of success to warrant the grant of interlocutory injunctive relief.* 8. *Whether the Plaintiff is entitled to enlargement of time for compliance with the Court's orders of 10th July 2025 and reinstatement of the interim injunctive orders.* 9. *What orders should this Court make as regards to costs.* 10. I shall first address the issue **of Propriety of the Defendants' undated application.** 11. The 1st Defendant's undated application seeking to set aside the ex parte orders has been challenged by the Plaintiff on grounds of procedural irregularity. The Plaintiff contends that the application does not respond to the Plaintiff's application as required under Order 51 Rule 14(1) of the Civil Procedure Rules. 12. Order 51, Rule 14 of the Civil Procedure Rules provides a clear framework for a respondent who wishes to oppose an application. The rule states that a respondent may file any one or a combination of a notice of preliminary objection, a replying affidavit, or a statement of grounds of opposition. The Defendants' approach of filing a separate application to set aside the court's orders, rather than responding to the Plaintiff's motion, is a clear deviation from this prescribed procedure. In my considered view, this is an abuse of the court process and a practice that should be discouraged. 13. This court, however, being a court of justice, I am guided by the overriding objective, which is to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes, I find that the 1st Defendant's application, albeit procedurally imperfect, is a legitimate challenge to the Plaintiff's suit on grounds of *sub judice* and material non-disclosure. The Court cannot turn a blind eye to the Plaintiff's material omissions simply because the 1st Defendant's application does not conform strictly to the prescribed form. 14. The substance of the 1st Defendant's application raises serious issues that go to the jurisdiction of this Court and the propriety of the Plaintiff's suit. It would be an abdication of the Court's duty to dismiss the application on purely procedural grounds while ignoring the substantive issues raised. I therefore will consider the 1st Defendant's application and proceed to consider the same on its merits. 15. On *sub judice*, the doctrine is founded under **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.”*** 1. In the decision of the Supreme Court in [**Kenya National Commission of Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 Others (interested parties)**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2020/54) **2020 eKLR** the doctrine of sub-judice was explained at paragraph 67 of the decision: ***“[67] The term ‘sub-judice’ is defined in*** [***Black’s Law Dictionary***](https://www.amazon.com/Blacks-Law-Dictionary-Standard-Ninth/dp/0314199497) ***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. The key question is whether the matter in issue in this suit is ‘directly and substantially in issue’ in the CMCC suit. I have carefully examined the pleadings and affidavits. 2. The Plaintiff's Director, Ali Noor Ibrahim, in paragraphs 26 to 30 of his Replying Affidavit, draws a clear distinction between the two suits. He avers that the CMCC case, CMCC/E10263/2021, was specifically based on the statutory notice dated 2nd May 2021 and the auction notice dated 24th May 2021. The reliefs sought therein include a declaration that those notices are null and void. The current suit, however, challenges a fresh attempt by the 1st Defendant to exercise the statutory power of sale, which the Plaintiff argues is unlawful due to the failure to issue fresh statutory notices, reliance on stale valuations, and the fact that the charge has changed hands. 3. Furthermore, while there is overlap in the parties, the cause of action in the CMCC suit is predicated on the validity of specific historical notices. The present suit seeks to prevent a sale based on a new set of events, notably the acquisition of the bank and the failure to comply with mandatory statutory procedures like proper valuation. The principle of *sub judice* is meant to prevent the multiplicity of suits on the same subject matter between the same parties. The ‘substance’ of the two suits, rather than their mere form, is what matters. Looking at the substance, the instant suit presents issues that are not directly and substantially in issue in the CMCC suit, including the legal effect of the bank's acquisition and the failure to conduct a valuation. 4. I am therefore not satisfied that the matter in issue in this suit is directly and substantially in issue in the CMCC suit to the extent that it would offend the doctrine of *sub judice*. The Plaintiff has raised new and distinct issues that are not being litigated in the lower court. Accordingly, the objection on grounds of *sub judice* fails. 5. In addressing the third issue on **setting aside the ex parte orders of 30th May 2025, t**he Defendants' undated application is essentially one to set aside the orders issued by this Court on 30th May 2025. The application is based on the grounds that the Plaintiff misled the Court, failed to disclose material facts, and that the suit is *sub-judice*. 6. The principles governing the discharge or variation of an injunction are set out in Order 40 Rule 7 of the Civil Procedure Rules, which provides that any order for an injunction may be discharged, varied, or set aside by the court on application made thereto by any party dissatisfied with such order. 7. The discretion to discharge an injunction must be exercised judiciously. In the case of **Filista Chamaiyo Sosten v Samson Mutai [2012] eKLR**, the Court held that the discretion under Order 40 Rule 7 ought to be sparingly used so as to avoid a situation where it would appear as if the same is being used as a tool for appeal. The Court further held that an injunction may be discharged if it was obtained by concealing material facts, or if the circumstances of the suit have radically changed. 8. In the case of **Robert Nyangaresi Onuonga v Mark Nyabayo Ratemo [2016] eKLR**, the Court observed that Order 40 Rule 7 would only come into play if there has been a fundamental change of circumstances at the time the application is being made vis-à-vis the time when the order was made. Order 40 Rule 7 will also be applicable where an injunction is granted ex parte particularly where the injunction was obtained without full disclosure of all material facts. 9. In the present case, I am not satisfied that the Plaintiff misled the Court or concealed material facts when it obtained the orders of 30th May 2025. The Plaintiff disclosed the existence of the suit before the Milimani Chief Magistrate's Court in its pleadings. The Plaintiff also raised serious issues regarding the validity of the statutory notices.Furthermore, the circumstances of the suit have not radically changed. The Plaintiff has now complied with the Court's orders by paying the Auctioneer's fees in full. I therefore find that the Defendants' application to set aside the orders of 30th May 2025 has no merit. 10. Turning now to the prayer of temporary injunction. The principles governing the grant of a temporary injunction are well settled and were established in the *locus classicus* case of **Giella v Cassman Brown & Co Ltd [1973] EA 358**. An applicant must demonstrate: 11. ***A prima facie case with a probability of success.*** 12. ***That an award of damages would not be an adequate remedy for the loss suffered.*** 13. ***If the court is in doubt, it will decide the application on a balance of convenience.*** 14. I must assess whether the Plaintiff has established a prima facie case. It is important to note that in determining this, the court is not to conduct a mini-trial. The Court of Appeal in **Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR** stated that: ***“…the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right, which has been or is threatened with violation.”*** 1. In the case of **Mrao Ltd v First American Bank of Kenya Ltd& 2 Others *[2003] KLR 125.*** The Court of Appeal defined a prima facie case as: ***“a case in which on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”*** 1. On the material before this Court, I am persuaded that the Plaintiff has established a prima facie case with a probability of success. The Plaintiff has raised a number of serious and arguable issues: 2. ***The Validity of Statutory Notices:*** *The Plaintiff argues that the statutory notices were issued by First Community Bank in 2021 and 2022 and have since lapsed.* 3. ***The Valuation Report:*** *The Plaintiff contends that the 1st Defendant failed to comply with Section 97(2) of the Land Act, which requires a forced sale valuation to be undertaken by a valuer before exercising the right of sale. The Defendants have annexed valuation reports, but the Plaintiff contests that the forced sale value is below the market value. This is a triable issue as to whether the 1st Defendant has fulfilled its statutory duty of care.* 4. ***The Acquisition of the Chargee:*** *The Plaintiff argues that the 1st Defendant, as a successor-in-title to First Community Bank, cannot rely on notices issued by a predecessor. While a successor can step into the shoes of the original chargee, the law requires that the power of sale is exercised strictly in compliance with the law. The failure to issue fresh notices in the name of Premier Bank is an arguable point of law.* 5. On the second limb, I am satisfied that damages would not be an adequate remedy for the Plaintiff. The subject matter is land, which is a special and unique asset. The loss of such property cannot be fully compensated by an award of damages. 6. The balance of convenience also tilts in favour of granting the injunction. The Plaintiff has shown some effort (part-payment, fee settlement). The Defendants' right to realize security is not absolute where process is challenged. Preservation of the *status quo* pending full hearing favors the Plaintiff, subject to conditions. On the other hand,the 1st Defendant, holds a security and can be adequately protected by preserving the suit property. 7. On the issue of enlargement of time for compliance with the Court's orders of and reinstatement of the interim injunctive orders. 8. The power of this Court to enlarge time is derived from Section 95 of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules. These provisions grant the Court the discretion to enlarge time, even after the expiration thereof, where sufficient cause is shown. 9. However, the discretion to enlarge time is not unfettered and must be exercised judiciously. Guided by the Supreme Court in **Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] eKLR**, the key determinants are the length of the delay, the honesty of the explanation, and the presence of uncompensable prejudice. 10. In the present case, the Plaintiff has candidly admitted that it was unable to comply with the Court's order of 10th July 2025 within the stipulated 21-day period due to financial constraints. The Plaintiff has, however, since remedied the position by paying the entire Kshs. 1,500,000/= Auctioneer's fees, together with an additional Kshs. 1,000,000/= towards the outstanding loan. The delay, while regrettable, is neither deliberate nor in bad faith. It arose from circumstances beyond the Plaintiff's control. 11. The 1st Defendant will suffer no prejudice if this Court enlarges time for compliance. The Auctioneer's fees have been paid in full, and a part of the loan has been serviced. Conversely, denying the orders sought will subject the Plaintiff to irreparable loss through the sale of the suit properties. 12. I am guided by the decision of the Court of Appeal in **Belinda Murai & Others v Amos Wainaina [1979] eKLR,** where the Court held that a genuine mistake or inadvertence should not necessarily be a bar to the exercise of the Court's discretion where the interests of justice demand otherwise. 13. I therefore find that this Court has jurisdiction to enlarge time for compliance with its orders of 10th July 2025. The Plaintiff has demonstrated sufficient cause to warrant this Court's intervention to enlarge time and deem its payment as valid compliance with the order of 10th July 2025. 14. In light of the foregoing analysis and determination, I find as follows: 15. ***The Defendants' Application dated 24th June 2025 is hereby dismissed.*** 16. ***The Plaintiff's substantive Notice of Motion application dated 30th May 2025 is hereby allowed. Pending the hearing and determination of the suit, a temporary injunction is hereby issued restraining the 1st Defendant, its servants, employees, and/or agents from advertising for sale, selling, alienating, disposing of, or in any manner interfering with the Plaintiff's ownership and possession of the suit properties, namely Land Reference Number 209/18457 and Land Reference Number 209/18475.*** 17. ***The Plaintiff's Notice of Motion Application dated 29th August 2025 is hereby allowed. The time for compliance with the Court's order of 10th July 2025 is enlarged, and the payment of Kshs. 1,500,000/- on 26th August 2025 is deemed proper and valid compliance. The interim injunctive orders issued on 5th June 2025 are hereby reinstated.*** 18. ***Costs in this matter shall be in the cause.*** **RULING** delivered virtually, dated and signed at **NAIROBI** This **25th** day of **June** 2026. **PETER MULWA** **JUDGE** **In the presence of:** *Mr. Anyiega* for Plaintiff *Ms. Mungai h/b for Mr. Njoroge* for Defendants Court Assistant*: Lispa*