https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12608

Waiganjo & another (As the Administrators of the Estate of David Waiganjo Koinange) v NCBA Bank Kenya PLC & another (Commercial Case E025 of 2025) [2026] KEHC 12608 (KLR) (7 August 2026) (Ruling) Neutral citation: [2026] KEHC 12608 (KLR) Republic of Kenya In the High Court at Mombasa Commercial Case E025 of 2025 J Ngaah, J August 7, 2026 Between Nancy Wairimu Waiganjo 1st Plaintiff Yvonne Wanjiku Waiganjo 2nd Plaintiff As the Administrators of the Estate of David Waiganjo Koinange and NCBA Bank Kenya PLC 1st Defendant Lydia N. Waweru t/a Purple Royal Auctioneers 2nd Defendant Ruling Introduction 1.Before the court is the 1st Defendant's Notice of Motion dated 13th May 2025 and filed on 14th May 2025. It is brought under sections 1A, 1B, 3, 3A and 7 of the Civil Procedure Act (Cap 21) and Order 2 rule 15(1)(d) of the Civil Procedure Rules, 2010. The 1st Defendant, which I shall call “the Bank”, seeks orders that the Plaintiffs' suit be struck out (a) for want of locus standi, and (b) for being res judicata and an abuse of the process of the court; and it seeks the costs of the application and the suit. 2.The application is supported by the affidavit of Christine Wahome, the Bank's Senior Legal Counsel, sworn on 13th May 2025, and its exhibits. These include a certificate of lease over the suit property, the plaint and the judgment in Mombasa HCC No. E086 of 2022, and the plaint in Mombasa HCCOMM No. E045 of 2024. Background and procedural history 3.The Plaintiffs sue as the administrators of the estate of the late David Waiganjo Koinange (“the deceased”), under a grant of letters of administration intestate said to have issued on 3rd January 2021. By a plaint dated 28th November 2022 they seek a permanent injunction restraining the sale of the property known as MSA/MS/Block I/337A, and a declaration that the process leading to the intended sale in exercise of the statutory power of sale is unlawful, null and void, for want of the statutory notices required by sections 90(1) and 96(2) of the Land Act, 2012, and for want of notice to the estate of the deceased's alleged indebtedness. 4.The plaint was filed together with a Notice of Motion of even date by which the Plaintiffs sought a temporary injunction restraining any dealing with the suit property pending the hearing and determination of the suit. That application has not been heard and remains pending. I return to it. 5.The suit has a procedural history that bears directly on the present application. It was commenced in the Milimani Commercial and Tax Division as HCCOMM No. E472 of 2022. The Bank met the Plaintiffs' injunction application with a preliminary objection dated 21st February 2023 on two grounds: first, that the Nairobi court lacked territorial jurisdiction under section 13 of the Civil Procedure Act, cap. 21, the suit property being situate in Mombasa; and secondly, that the suit was res sub judice under section 6 of the Act by reason of Mombasa HCC No. E086 of 2022, Ritah Nduku Muthusi v NIC Bank Limited (now NCBA), said to arise from the same facts and to seek the same relief. 6.By a ruling delivered on 19th January 2024, Njoki Mwangi J. upheld the objection on the first ground and rejected it on the second. On jurisdiction, she held that the suit property being in Mombasa, the Nairobi court had no territorial jurisdiction, and she transferred the suit to the High Court at Mombasa. On res sub judice, however, she held that the objection could not stand as a preliminary point of law because, applying Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, the question whether the two suits were directly and substantially in issue between the same parties litigating under the same title required the ascertainment of facts and the probing of evidence, and could not be resolved on the assumption that the pleaded facts were correct. In transferring the suit, she gave the Bank liberty to apply, before the Mombasa court, for the consolidation of this suit with Mombasa HCC No. E086 of 2022. 7.It is by virtue of that transfer that the suit is now before this court as Commercial Case No. E025 of 2025. The Bank did not take up the liberty to apply for consolidation. Instead, and after the intervening conclusion of E086 of 2022, it has brought the present application to strike out. 8.As to the property, the certificate of lease exhibited as CW-1 shows Title No. MSA/MS/Block I/337A to be registered not in the name of the deceased alone but in the names of the deceased, David Waiganjo Koinange, and Ritah Nduku Muthusi. A charge in favour of the Bank is registered against the property. 9.The related proceedings relied on by the Bank are these. In Mombasa HCC No. E086 of 2022 Ritah Nduku Muthusi challenged the Bank's exercise of its statutory power of sale over the property; that suit was heard on oral evidence and dismissed by a judgment of the learned Judge (Magare, J.) delivered on 7th May 2024. In Mombasa HCCOMM No. E045 of 2024, brought by a plaint dated 10th August 2024, the same Ritah Nduku Muthusi is said to have renewed the same complaints. The Plaintiffs in the present suit were not parties to either of those suits. The 1st Defendant's submissions 10.The Plaintiffs did not respond to the application. Directions given on 26th May 2025 required them to file a response within twenty-one days; none was filed, and no submissions were filed on their behalf. The only submissions on the record are those of the Bank, dated 2nd October 2025, which I have considered. 11.On locus standi, the Bank submits that the deceased and Ritah Nduku Muthusi held the property as joint tenants; that by the right of survivorship (jus accrescendi) the deceased's interest passed automatically to Ritah Nduku Muthusi on his death and did not form part of his estate; and that the Plaintiffs, whose only claim is through the deceased, therefore have nothing to protect and no standing to sue. For the incidents of a joint tenancy it relies on Diana Muchiri v Lydia Wariara Njenga & another [2022] KEELC 1950 (KLR), and for the proposition that only the chargor may challenge the exercise of a statutory power of sale it relies on Quantum Petroleum Limited v Co-operative Bank of Kenya Ltd [2021] KEHC 3188 (KLR). 12.On res judicata and abuse of process, which it treats together, the Bank submits that the four unities of a joint tenancy make the co-owners a single ownership, so that when Ritah Nduku Muthusi sued in E086 she sued for herself and for the deceased alike, with the result that her defeat binds the deceased's estate and these Plaintiffs as her privies. It relies on the elements of res judicata and on constructive res judicata as discussed in Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] KEHC 6100 (KLR); on the passage in John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] KECA 472 (KLR) concerning a party who stands by while his battle is fought by another in the same interest; on William Koross v Hezekiah Kiptoo Komen & 4 others [2015] KECA 906 (KLR), as to finality and the risk of conflicting judgments; and on Kivanga Estates Limited v National Bank of Kenya Limited [2017] KECA 591 (KLR), as to the court's duty to stop litigation brought to stave off a debt truly owing. It contends that the Plaintiffs and Ritah Nduku Muthusi have between them brought three suits to resist a single power of sale, and that this is a plain abuse. 13.The Bank fairly acknowledges that even an unopposed application will be granted only if it has merit. I respectfully agree, and it is on that footing that I approach the matter. The Plaintiffs' failure to respond does not entitle the Bank to the orders it seeks; the court must still be satisfied that the stringent threshold for striking out is met, the more so where the remedy sought is the summary termination of the suit. Issues for determination 14.The issues are:a.whether the suit should be struck out for want of locus standi;b.whether it should be struck out as res judicata and/or an abuse of the process of the court; andc.what orders should follow, including in respect of the pending injunction application and costs. The principles governing striking out 15.Order 2 rule 15(1) of the Civil Procedure Rules empowers the court to strike out a pleading on the grounds that it discloses no reasonable cause of action or defence; that it is scandalous, frivolous or vexatious; that it may prejudice, embarrass or delay the fair trial of the action; or that it is otherwise an abuse of the process of the court. The Bank's application is premised on the last limb, and on the related contentions of want of locus standi and res judicata. 16.Sub-rule (2) provides that no evidence is admissible on an application brought on the ground that a pleading discloses no reasonable cause of action. To the extent that the Bank invites the court to hold that the plaint discloses no reasonable cause of action, the court is confined to the plaint and may not look to the certificate of lease or the other matters in the supporting affidavit. To the extent that it relies on the abuse limb and on res judicata, evidence is admissible and I have considered the annextures. 17.The jurisdiction to strike out and thereby to terminate a suit without a trial is a draconian one, to be exercised only in plain and obvious cases: D.T. Dobie & Company (Kenya) Ltd v Muchina [1980] eKLR. The court will not drive a litigant from the seat of justice where the pleadings raise triable issues, or where the suit, however weak it may appear, raises questions that ought properly to be investigated. It is struck out only where it is so plainly unsustainable that no amendment or evidence could save it; where the court is left in real doubt, the matter should go to trial. A court of justice should aim to sustain a suit rather than to terminate it summarily. Whether the suit should be struck out for want of locus standi 18.The Bank's locus standi argument depends entirely on a single proposition: that the co-ownership of the deceased and Ritah Nduku Muthusi was a joint tenancy, so that survivorship operated on the deceased's death to divest his estate of any interest. 19.Survivorship is an incident only of a joint tenancy; it has no application to a tenancy in common. Section 91 of the Land Registration Act, 2012 recognises both forms. Under a joint tenancy no co-owner holds a distinct share and, on the death of one, his interest passes to the survivor by survivorship and does not form part of his estate. Under a tenancy in common each co-owner holds a distinct undivided share which, on death, devolves upon and is administered as part of his estate. The authority on which the Bank relies, Diana Muchiri (supra), states the consequences of a joint tenancy; it does not, and cannot, establish that a particular co-ownership is a joint tenancy. That anterior question is the very question here. 20.The difficulty for the Bank is that this foundational premise is not established on the material before me. The certificate of lease (CW-1), upon which the argument wholly rests, records the deceased and Ritah Nduku Muthusi as co-proprietors but does not declare the form of their co-tenancy, whether joint tenancy or tenancy in common. The scheme of the Land Registration Act contemplates that the form be disclosed on the register: Section 91 (2) and (3) thereof provide;(2)Except as otherwise provided in any written law, where the instrument of transfer of an interest of land to two or more persons does not specify the nature of their rights there shall be a presumption that they hold the interest as tenants in common in equal shares.(3)An instrument made in favour of two or more persons and the registration giving effect to it shall show—(a)whether those persons are joint tenants or tenants in common; and(b)the share of each tenant, if they are tenants in commonWhether the deceased and Ritah Nduku Muthusi were spouses, she is described in the papers as his widow, while the Plaintiffs have proceeded on the footing that the property was the deceased's, is itself a question of fact bearing on whether a joint tenancy could and did arise. None of this can be resolved on a certificate that is silent on the very point. 21.It follows that whether the estate retains an interest in the property cannot be determined on this application. It turns on the construction of the instrument of transfer and the entries in the register, and on evidence of the circumstances of registration and of the relationship between the co-owners. These are triable questions going to the merits, not a threshold bar amenable to summary determination. 22.Nor does Quantum Petroleum (supra) carry the Bank further. The charge was granted by the co-proprietors, the deceased among them; the deceased was therefore himself a chargor. Whether his estate succeeds to his position, and to the equity of redemption, so as to be entitled to challenge an allegedly irregular exercise of the power of sale, depends once again on the nature of the co-tenancy. On the tenancy-in-common hypothesis the administrators would be entitled, as representing a deceased chargor, to protect the estate's share. The principle that only the chargor may challenge the power of sale does not dispose of the question; it restates it. 23.I add that the Plaintiffs hold, on the face of it, a grant of letters of administration, which clothes them with standing to protect the assets of the estate; whether the suit property is such an asset is the contested question. To strike out the suit on this ground would be to decide that contested question of mixed law and fact against the Plaintiffs, without a trial and without the evidence its resolution requires, the more so where the relief sought is protective of land that may otherwise be irreversibly sold. The locus standi ground does not meet the threshold for striking out. Whether the suit is res judicata or an abuse of process 24.Res judicata is governed by section 7 of the Civil Procedure Act, which provides: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. 25.The five elements distilled by the Court of Appeal in Independent Electoral and Boundaries Commission v Maina Kiai & 5 others [2017] eKLR must all be present: the matter must have been directly and substantially in issue in the former suit; the suits must be between the same parties or parties claiming under them; those parties must litigate under the same title; the matter must have been heard and finally decided; and the deciding court must have been competent. The doctrine extends, by the Explanation to section 7, to matters that might and ought to have been raised — the constructive res judicata on which the Bank relies. I accept, as the authorities it cites establish, that res judicata serves the vital public interest in the finality of litigation, and that the courts will not permit their process to be abused by the serial or parallel pursuit of the same matter (William Koross; Kivanga Estates; Satya Bhama). Those principles are not in doubt. 26.But because res judicata shuts a party out without a hearing on the merits, its elements must be clearly established before it can found the striking out of a suit; where they are contested and depend on evidence, it cannot be applied summarily. That is this case, for several connected reasons. 27.First, the parties are not the same. The Bank itself concedes, as it did before Njoki Mwangi J., and again in its present submissions, that the Plaintiffs were not parties to E086 of 2022 or E045 of 2024. Those suits were brought by Ritah Nduku Muthusi in her own name; the present suit is brought by the administrators of the estate. The Bank's bridge across this gap is that, as joint tenants, Ritah Nduku Muthusi and the deceased were a single ownership, so that her litigation binds his estate as her privy. But that contention depends on the joint-tenancy premise which, as I have held, is not established and is itself triable. If the co-ownership is a tenancy in common, the estate holds a distinct interest that was neither represented nor determined in E086, and no question of privity by survivorship arises. 28.Secondly, even assuming a joint tenancy, whether these Plaintiffs are privies bound by Ritah Nduku Muthusi's litigation is not to be presumed; it is a question of fact. The principle in the John Florence case (supra), as it stood in the Court of Appeal, binds a person who, knowing what was passing, was content to stand by and see his battle fought by another in the same interest. That sits uneasily with the facts: the Plaintiffs did not stand by. They filed this very suit on 28th November 2022, the same day on which Ritah Nduku Muthusi filed E086, and prosecuted it in their own name. Whether, in those circumstances, they are to be treated as privies bound by the outcome of her separate suit is precisely the kind of question that cannot be answered without evidence. I note, too, that the Bank candidly acknowledges that the decision in John Florence case was reversed on appeal ([2021] KESC 39 (KLR)); to rest the summary termination of a suit upon a passage from a decision that did not survive appeal is, at best, a fragile foundation. 29.Thirdly, this very difficulty has already been identified in these proceedings. When the Bank put the overlap with E086 before Njoki Mwangi J. as a res sub judice objection, she held that the question whether the two suits were between the same parties litigating under the same title could not be resolved as a point of law but required the ascertainment of facts and the probing of evidence. That reasoning applies with equal force to the plea of res judicata now advanced: the same-parties and same-title questions are no more amenable to summary determination now than they were then. The intervening conclusion of E086 changes the label of the objection from sub judice to res judicata; it does not remove the factual inquiry on which both depend. 30.To this may be added that it is not self-evident that the matters now raised were, within the meaning of section 7, heard and finally decided in E086. That suit was dismissed not upon a full vindication of the regularity of the sale process but for want of proof and for defects in the pleadings, the learned Judge having expressly observed that the question whether the co-owner had been served could not be determined in the absence of specific pleadings. Whether the issues the estate seeks to raise were truly concluded is itself a matter for argument, not for summary disposal. 31.As to abuse of process, I do not doubt that the multiplicity of suits touching this power of sale is a matter of legitimate concern, or that a court will act to prevent its process being used to stave off a debt truly owing (Kivanga Estates, supra) or to produce the conflicting judgments deprecated in William Koross (supra). But two of the three suits complained of were brought by Ritah Nduku Muthusi, not by these Plaintiffs; the present suit is the estate's first and only suit; and it was filed contemporaneously with E086, before either had been decided, and not as a fresh assault after defeat. To brand the estate's suit an abuse on account of Ritah Nduku Muthusi's separate litigation requires the very finding of privity or common design that, as I have explained, cannot be made summarily. The concern about multiplicity is real, but on this record it is not a ground for striking out. 32.For these reasons the res judicata and abuse of process grounds also fall short of the threshold. The pending injunction, multiplicity and consolidation 33.Two matters remain, and they call for directions rather than dismissal of the suit. 34.First, the Plaintiffs' Notice of Motion dated 28th November 2022 for a temporary injunction is still undetermined. As the suit survives, that application must now be heard on its merits. I express no view upon it. The Plaintiffs will have to satisfy the established principles, including the demonstration of a prima facie case with a probability of success. 35.Secondly, the concern about multiplicity and the risk of inconsistent decisions is, as Njoki Mwangi J. foresaw, best met by consolidation or coordinated case management rather than by the summary termination of an unheard suit. The learned Judge expressly gave the Bank liberty to apply for the consolidation of this suit with the proceedings brought by Ritah Nduku Muthusi. E086 of 2022 having since been concluded, that course now points to Mombasa HCCOMM No. E045 of 2024, said to be pending. Consolidation, or the concurrent management of the two suits, remains the appropriate means of guarding against conflicting outcomes over the same property and the same charge, while preserving the estate's right to be heard. The Bank remains at liberty to pursue it. Disposition and orders 36.In the result, the application is not made out. The suit raises triable issues that cannot be resolved summarily; it is neither plainly res judicata nor plainly an abuse of process; and that it is unopposed does not lower the threshold, which remains unmet. 37.On costs, the Bank's application, though unsuccessful, raised substantial questions, and the Plaintiffs neither responded to it nor appeared, while the merits of the suit remain undetermined. The just order is that the costs of the application be costs in the cause. 38.I accordingly make the following orders:a.The 1st Defendant's Notice of Motion dated 13th May 2025 is dismissed.b.The Plaintiffs' Notice of Motion dated 28th November 2022 shall be listed for hearing.c.The costs of the application shall be costs in the cause.It is so ordered. SIGNED, DATED AND PUBLISHED ON 7 AUGUST 2026NGAAH JAIRUSJUDGE