https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10159

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **HCCOMM NO. E005 OF 2026** **IN THE MATTER OF ARTICLE 40, 2 AND 5 OF THE CONSTITUTION OF KENYA, 2010** **AND** **IN THE MATTER OF SECTIONS 89, 90, 91, 92, 103, 104 AND 105 OF THE LAND ACT, 2012** **AND** **IN THE MATTER OF THE EQUITY OF REDEMPTION FOR LR NO. EAST BUKUSU SOUTH/KANDUYI/2028** **BETWEEN** **ZEKI WANJALA WANYAMA T/A ZEKI MOTORS AND AGENCIES....................................................1ST PLAINTIFF/APPLICANT** **VERSUS** **NCBA BANK KENYA PLC FORMERLY NIC BANK KENYA………………………………………DEFENDANT/RESPONDENT** **RULING** 1. This Ruling is with respect to a Notice of Motion dated **29th April 2026**. The same is brought pursuant to **Sections 3, 3A and 63(e) of the Civil Procedure Act, Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, and Sections 89, 90, 91, 103 and 104 of the Land Act, 2012**. Therein, the Plaintiff/Applicant, **Zeki Wanjala Wanyama t/a Zeki Motors and Agencies** seeks the following orders; 2. **Spent.** 3. **Spent.** 4. **That this Honourable Court be pleased to issue a temporary stay of sale restraining the Defendant/Respondent, its agents, representatives or assignees through Purple Royal Auctioneers from selling and/or disposing by way of public auction the Plaintiff/Applicant’s land parcel LR No. East Bukusu South/Kanduyi/2028 pending the hearing and determination of this application.** 5. **That this Honourable Court be pleased to issue a temporary stay of sale restraining the Defendant/Respondent, its agents, representatives or assignees from selling and/or disposing by way of public auction the Plaintiff/Applicant’s land parcel LR No. East Bukusu South/Kanduyi/2028 pending the hearing and determination of the main suit.** 6. **That costs of this application be provided for by the Defendant/Respondent.** 7. The application is supported by the grounds on the face of the Application and the Supporting Affidavit of Zeki Wanjala Wanyama sworn on 29th April 2026. He states that he is a businessman trading as Zeki Motors and Agencies. That he secured a financial accommodation of Kshs. 21,000,000/= from the Defendant/Respondent under a charge dated 7th November 2013 for which he offered his parcel of land being **LR No. East Bukusu South/Kanduyi/2028** as security. 8. He deposed that he has been making the necessary payments whenever they fell due but that later he fell ill and was hospitalized. That he informed the bank of his condition which led to a review and renegotiation of the repayment terms. That this was through correspondence and a memorandum of understanding. 9. The Applicant contends that **LR No. East Bukusu South/Kanduyi/2028** ought not to be sold because the parties had already reviewed the repayment arrangements, and the Respondent too allegedly encouraged him to continue with the renovations and payments. That the intended auction advertised in the Standard Newspaper on 14th April 2026 is therefore malicious. He further says that the property is fully developed, that his family depends on it for their livelihood, and that unless the court intervenes, he stands to lose property for whose value he cannot be adequately compensated. 10. In the affidavit in support of the Application, he deposed, among other things, that he was and remains the registered proprietor of **LR No. East Bukusu South/Kanduyi/2028,** that he has serviced the loan over time, and that it is his illness and hospitalization that hindered him from making further payments. That the Respondent’s officials assured him that the auction would be called off. He also relied on annexures including the title deed, loan documents, medical records, M-Pesa statements, text messages, e-mails, photographs and the alleged memorandum of understanding dated 18th October 2023. **Replying Affidavit** 1. The application is opposed by way of a Replying Affidavit sworn by one Christine Wahome on 9th June 2026. She depones that she is the Senior Legal Counsel of the Defendant/Respondent and that she has been duly authorized by the Defendant’s Board of Directors to swear the affidavit on its behalf. 2. She avers that the application is incompetent, is an abuse of the court process, and was obtained through material non-disclosure and misrepresentation. She deposed that the Plaintiff/Applicant deliberately omitted material facts touching on the dispute, particularly the history of previous litigation concerning the same subject property and the Respondent’s statutory rights over the charged land. 3. She further deposed that the suit property, **LR No. E. Bukusu/S. Kanduyi/2028** has been the subject of a prolonged dispute between the parties, arising from the same borrower-lender relationship and the same charge instrument. She states that the Plaintiff has filed multiple suits and applications over the same property in an attempt to restrain the Respondent from exercising its statutory power of sale, and that such conduct amounts to an abuse of the court process and is contra-statute. 4. She adds that by a letter of offer dated 3rd July 2013, the Plaintiff accepted a loan facility of Kshs. 24,000,000/=, out of which the Bank advanced Kshs. 21,000,000/=, and that the Plaintiff voluntarily offered the suit property as security for the due performance of the loan (*Annexed and marked NC-1 is a copy of the letter of offer*). She states that a charge was duly registered over the title, that the Plaintiff subsequently defaulted in repayment, and that despite repeated demands, requests and reminders, he failed to regularize the account (*Annexed and marked NC-2 is a copy of the charge instrument*). 5. The deponent further states that the Defendant issued the requisite statutory notices in accordance with the law, namely the three months’ notice and the forty days’ notice, together with the corresponding certificates of postage (*Annexed and marked NC-3a and NC-3b are copies of the 3-month notice and the 40-day notice*). She avers that the Plaintiff’s default persisted notwithstanding the notices, and that the Bank was therefore entitled to initiate recovery proceedings to safeguard its interests and those of its depositors. 6. She also deposes that the Plaintiff previously filed **Bungoma HCCC No. 2 of 2021**, in which the Court heard and determined the dispute and upheld the Defendant Bank’s right to realize the security. In her view, the issues raised in the present application were conclusively determined in that suit, and the Applicant cannot now invite the Court to reopen the same question under the guise of a fresh application. 7. She further avers that after the judgment, the Plaintiff approached the Bank for a concession on repayment, culminating in a settlement agreement dated 18th October 2023 (*Annexed and marked NC-4 is a copy of the judgment, and NC-7 is a copy of the email correspondence*). Under that agreement, the Plaintiff undertook to repay Kshs. 18,000,000/=, and it was expressly agreed that upon default, the Defendant would be at liberty to recover the entire outstanding amount, then stated as Kshs. 27,108,407.33, together with interest and costs until payment in full (*Annexed and marked NC-8 is a copy of the agreement*). 8. The deponent states that the Plaintiff nevertheless defaulted on the settlement agreement, prompting the Defendant to resume the auction process. She points out that as of 9th June 2026, the outstanding arrears stood at Kshs. 27,517,625.84, exclusive of continuing interest at the contractual rate (*Annexed and marked NC-6 is a copy of the statements of account*). 9. The Defendant further deposes that the Applicant has, over the years, filed a multiplicity of suits over the same property and facility, namely **Bungoma CMCC 128 of 2020, CMCC E013 of 2021, CMCC E68 of 2021, CMCC E265 of 2022 and MCELC E070 of 2024,** all between the same parties and touching on the same subject matter (*Annexed and marked NC-5 is a copy of the rulings issued by the court on the suit property*). 10. Finally, she avers that the Plaintiff has made an unequivocal admission of debt, has failed to disclose all material facts, and has approached the Court with unclean hands. She maintains that the Plaintiff has not demonstrated any valid ground to challenge the sale of the suit property, and that granting the orders sought would seriously prejudice the Defendant Bank. 11. The Application was canvassed by way of written submissions and parties were given timelines within which to file their submissions. The reecord shows that submissions were only filed on behalf of the Defendant/Respondent only and there were none filed on behalf of the Plaintiff/Applicant, **Defendant/Respondent’s Submissions** 1. The Defendant submitted that the Notice of Motion dated 29th April 2026 is devoid of merit and ought to be dismissed with costs. Counsel for the Defendant relied on the Replying Affidavit sworn by Christine Wahome on 9th June 2026 and the written submissions filed on 23rd June 2026, and contended that the application is incompetent, *res judicata*, and an abuse of the process of the Court. 2. It was submitted that the dispute before the Court is not novel. According to the Defendant, the parties, the subject matter, and the relief sought in the present proceedings are the same as those in **Bungoma HCCC No. 2 of 2021** formerly **ELC No. 5 of 2018, Zeki Wanjala Wanyama T/A Zeki Motor Agencies v NCBA Bank Kenya PLC**, in which the Applicant had similarly sought to restrain the Defendant from exercising its statutory power of sale over the same property, **East Bukusu/South Kanduyi/2028**, arising from the same credit facility. 3. The Defendant submitted that the said former suit was heard on the merits and conclusively determined by Honorable Kemei, J. in a judgment delivered on 30th June 2023, in which the Court upheld the validity of the Defendant’s statutory notices, found that the Bank had complied with the requisite statutory and contractual procedures, and vacated the restraining orders that had previously been issued. It was therefore urged that the Applicant cannot, by filing a fresh application on the same foundation, invite the Court to sit on appeal over a judgment that remains valid, binding, and unchallenged. 4. Counsel further submitted that the Applicant’s present application is also barred by the doctrine of *res judicata* under **Section 7 of the Civil Procedure Act**. It is urged that all the ingredients of *res judicata* were satisfied *to wit* the matter in issue is directly and substantially the same; the parties are the same; they litigated under the same title; the former matter was finally determined; and the court that determined it was competent. Reliance was placed on the authorities in **Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others and Mwikali Another v Mutungi 3 Others**, in which the Court of Appeal reiterated that litigation must come to an end and that parties should not be permitted to reopen issues already adjudicated. 5. The Defendant also submitted that the Applicant had failed to make full and frank disclosure to the Court. It is contented that the Supporting Affidavit deliberately omitted material facts, particularly the existence of the adverse judgment in **Bungoma HCCC No. 2 of 2021** and the other suits filed by the Applicant concerning the same property and the same debt. The Defendant urged that a litigant who seeks equitable relief must disclose all material facts, and that nondisclosure of a prior final judgment is sufficient reason, on its own, to decline the relief sought. 6. On the merits of the injunction, the Defendant submitted that the Applicant had not established a prima facie case with a probability of success. Counsel pointed out that the Applicant did not deny taking the facility, charging the suit property, defaulting on repayment, or defaulting even on the subsequent settlement agreement dated 18th October 2023. It is urged that the Applicant’s own affidavit amounted to an admission of indebtedness and default, and that where default is admitted, and no concrete repayment proposal is shown. That a chargor cannot restrain a chargee from exercising an accrued statutory power of sale. 7. The Defendant further submitted that the Applicant had not demonstrated irreparable harm. It was argued that the suit property was voluntarily offered as security for a commercial loan and, in law, a charged property becomes a commodity for sale. Any loss arising from its sale, it was submitted, is compensable by damages and does not meet the threshold for an interlocutory injunction. Reliance was placed on **Nguruman Limited v Jan Bonde Nielsen & 2 Others and Paul Muhoro Kihara v Barclays Bank K Ltd,** as cited in the Defendant’s authorities. 8. Finally, the Defendant submitted that the balance of convenience tilts in its favor. Counsel argued that the Defendant is a regulated deposit-taking institution bound to recover funds lawfully advanced to it by depositors, and that it would suffer greater prejudice if restrained from realizing the security after years of default and repeated litigation over the same facility. The Court was urged to dismiss the application, discharge the interim orders, and uphold the Defendant’s statutory and contractual right to exercise the power of sale. **Determination** 1. Having considered the Notice of Motion, the Affidavits in support of and against together with the annexures thereto and the submissions filed by the Defendant/respondent, it is my considered opinion that the issues that arise for for determination are; 2. **Whether the present suit and application are *res judicata*, and if not,** 3. **Whether the Applicant has satisfied the conditions for the grant of an interlocutory injunction or stay pending hearing and determination of the suit.** 4. On the first issue of *res judicata*, **Section 7 of the Civil Procedure Act** provides as follows; **"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."** 1. The elements that must be conjunctively satisfied for the doctrine to apply as was restated by the Court of Appeal in **Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR**, where the Court held that: **Thus, for the bar of *res judicata* to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms;** * 1. **The suit or issue was directly and substantially in issue in the former suit.** 2. **That former suit was between the same parties or parties under whom they or any of them claim.** 3. **Those parties were litigating under the same title.** 4. **The issue was heard and finally determined in the former suit.** 5. **The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised."** 1. Applying those elements to the facts and evidence regarding this case, the parties in **Bungoma HCCC No. 2 of 2021** herein relied on by the Defendant/Respondent in support of their submission on *res judicata*, the instant suit and the said suit are the similar in that the Applicant/Plaintiff trading as Zeki Motors and Agencies, and the Defendant/Respondent NCBA Bank are the same, the parcel of land, being **East Bukusu/South Kanduyi/2028** is the same, the subject matter being a charge to secure a credit facility totaling Ks. of Kshs. 21,000,000/- advanced in 2013 is also the same. 2. Further, the issue that was determined in **Bungoma HCCC No. 2 of 2021** was whether the Bank had lawfully and procedurally crystallized its statutory power of sale over the suit property in seeking to recover the outstanding loan. This is substantially the same issue this court is now being asked to determine through the present application. That issue was heard on its merits and determined by Honorable Kemei, J in a court with the necessary competence and jurisdiction. That decision has not been shown to have been set aside, varied, and/or successfully appealed against. 3. Apart from these factual finding, the court is also guided by the holding of the Court of Appeal in **Mwikali & Another v Mutungi & 3 Others (Civil Appeal 189 of 2019) [2026] KECA 231 (KLR)**, where the Court stated: **"Section 7 prohibits the court, in absolute terms, from hearing a suit which raises issues that have already been heard and finally determined by a court of competent jurisdiction in an earlier suit between the same parties or parties claiming under them. The rationale behind the doctrine of res judicata rests on the principles that litigation must come to an end, and that the court cannot be asked to determine the same issue over and over."** 1. The court in the same decision further held: **“There are two other important principles to bear in mind as regards the doctrine of *res judicata*, which are relevant to this appeal. The first is that the doctrine applies not only to the issues raised in the first suit, but also to all issues which, by reasonable diligence, the parties ought to have raised in that first suit. Accordingly, parties are required to bring forward their entire claims in the first suit rather than to litigate the issues in instalments. Thus, if, from the nature of the case, an issue ought to have been raised in the first suit but due to accident, inadvertence or negligence it was not raised, the court will not allow it to be raised subsequently..."** 1. The rationale for the doctrine re-emphasised by the Supreme Court in **Kenya Commercial Bank Ltd & Another v Muiri Coffee Estate Ltd & 3 Others [2016] KESC 6 (KLR)**, where the Court held 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."** 1. The court further notes that **Explanation 4 to Section 7 of the Civil Procedure Act** extends the doctrine beyond issues actually litigated, and provides that: **"Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."** 1. In the circumstances, I am satisfied and I now hereby find and hold that the instant application in so far as it seeks to restrain the Defendant from exercising its statutory power of sale over the suit property in recovery of the same facility, the same charge, and substantially the same arrears already pronounced upon in **Bungoma HCCC No. 2 of 2021**, is *res judicata* within the meaning of **Section 7 of the Civil Procedure Act**, and offends the principle that there must be an end to litigation. 1. In this regard, I find that the Application and the entire suit is bad in law, is mischievous and also lacks merit. Accordingly, the same is now hereby dismissed I its entirety with costs to the Respondent. **Read dated and Signed at BUNGOMA on 9th JULY 2026** **E. OMINDE** **JUDGE**