1. This ruling results from the Defendants’ Notice of Motion dated 26th February, 2025, brought Sections 3A and 7 of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law and seeks the following orders:
a. THAT the Plaintiff’s suit be struck out with costs to the Defendants.
2. The grounds upon which the application is premised are in set out on its face and are as follows:
1. THAT under the provisions of Section 7 of the Civil Procedure Act, Cap 21 Laws of Kenya, the Plaintiff’s application and the whole suit are sub judice/res judicata and therefore illegal and/or a nullity, the Plaintiff herein having previously lodged the below listed several other suits which suits solely revolve around the same issue as raised in this present suit, being the intended sale of the suit property, Title No. Kisumu Municipality Block 6/15 in exercise of the 1st Defendant’s statutory power of sale:
i. Nairobi HCCOMM No. E429 of 2022 Maloba Alfred Juma v Standard Chartered Bank & Phillips International Auctioneers.
ii. Kisumu MCCC No. E171 of 2023 Alfred Juma Maloba v Standard Chartered Bank & Phillips International Auctioneers.
iii. Kisumu HCCC No. E006 of 2024 Alfred Juma Maloba v Standard Chartered Bank & Phillips International Auctioneers.
2. THAT the suit offends the mandatory provisions of Section 7 of the Civil Procedure Act.
3. The application is supported by the affidavit of Boniface Machuki, who describes himself as the 1st Defendant’s Manager, Legal Collections and Recoveries Department. The affidavit was sworn on 26th February, 2025 and expounds on the above grounds.
4. In precis, the deponent to the supporting affidavit states that the Plaintiff has previously instituted the three other suits that are listed above and that all the suits relate to the same subject matter as the instant suit and relate to the same parties. The deponent has annexed to his affidavit the Plaintiff’s pleadings in the above matters and the ruling of this court (Aburili, J.) in Kisumu HCCC No. E006 of 2024 Alfred Juma Maloba v Standard Chartered Bank & Phillips International Auctioneers.
5. Service of the application and the hearing notice thereof was effected upon the Plaintiff to the satisfaction of this court. The Plaintiff did not respond to the Motion and the application thus proceeded as unopposed.
6. Having perused the application, the affidavit in support thereof and the record in its entirety, I am satisfied that the Applicant has demonstrated that the Plaintiff has previously instituted the listed suits against the Defendants herein and that in all the matters, the purported dispute is the same and relates to the 1st Defendant’s attempts to exercise its statutory power of sale over the suit property Title No. Kisumu Municipality Block 6/15.
7. It is instructive from the annexed ruling by Aburili J. that the Plaintiff’s application for seeking an injunction to restrain the Defendants from selling the suit property was dismissed 12th November, 2024. I note that the Plaintiff filed a similar application in this matter, notwithstanding the dismissal.
8. I am in the premises in concurrence with the Applicant that the instant suit is incompetent as it violates Section 7 of the Civil Procedure Act. The same is, to say the least, an abuse of the process of this court.
9. Being of the foregoing persuasion, I proceed to strike out the entire suit with costs to the Defendants, which I hereby assess at Ksh.15,000/- in respect of each Defendant.
10. This file is closed.
Delivered (virtually), Dated and Signed this 4th day of April, 2025.
JOE M. OMIDO
JUDGE
FOR THE PLAINTIFF: No appearance.
FOR THE DEFENDANT: Ms. Karanja.
COURT ASSISTANT: Mr. Ngoge & Mr. Juma.