1. The genesis of the application dated 16th June, 2025, is a Notice of Motion dated 19th November, 2024, which was filed by the Applicant. The Applicant sought injunctive orders restraining the Defendants from attaching, advertising for auction, and auctioning and/ or selling the Plaintiff’s land known as L.R. No. MN/1/1683 (C.R 8508) and the properties therein (herein after referred to as the suit property).
2. The Applicant stated that on 23rd May, 2022 the 1st Defendant/ Respondent advanced a credit facility of Kshs. 56,000,000 which was to be repaid in 120 months with a monthly instalment of Kshs. 836,141/=. The Applicant admits defaulting in the repayment of instalments in September 2024. It repaid Kshs. 200,000/= of the defaulted amount. Despite the repayment, the Defendant/ Respondents made a demand of Kshs. 54, 326,948 which was not the correct position as it had made several deposits towards settlement of the arrears.
3. The facility was to run for 120 months, hence the repayment period had not lapsed. If the suit property is to be sold by way of auction, the Applicant will be condemned to lose its property yet the loan amount had substantially been liquidated.
4. In the Replying Affidavit dated 2nd December 2024 sworn by Paul Chelang’a, the Recoveries Manager within the 1st defendant/ respondent’s Credit department deponed that the Applicant fell into arrears within the first few months after being advanced a credit facility of Kshs. 56,000,000/=. The 1st Respondent wrote to the Applicant seeking to have the loan account regularized as it had arrears of Kshs. 1,905,180.81//= as at 1st March 2023. In default of regularization of the loan account, the 1st Respondent issued the 90 days Statutory Notice on 22nd June 2023, and further on 6th November 2023, the Applicant was issued with the 40 days’ notice of intention to sell.
5. With the Applicant having been given more than enough time to regularize its loan account, on 30th August, 2024, the 1st Respondent instructed the 2nd Respondent to proceed and advertise the suit property for sale. On 17th September 2024, the 1st Respondent issued the Applicant with 45 days’ Notice to Redeem the suit property. On 19th November 2024, the Applicant wrote to the 1st Respondent stating that it had paid Kshs. 3,750,000/= leaving arrears of Kshs. 240,000/=. On the same date, the Applicant drew the application seeking the above mentioned orders.
6. The court granted interim orders restraining the Respondents from selling the suit property by way of auction pending the hearing and determination of the application. On 4th December 2024, directions were issued that the application be canvassed by way of written submissions, and a ruling date fixed for 31st July 2025.
7. Pending the ruling, the Applicant filed a Notice of Motion dated 16th June 2025 brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules.
8. The application seeks the following orders principally:
a. Spent
b. That this Court be pleased to arrest the ruling pertaining to the application dated 19th November 2024 which had been scheduled for delivery on 19th June 2025.
c. That this Court be pleased to admit and consider additional payment receipts filed by the Applicant before delivery of the said ruling.
d. That costs be in the cause.
9. The application is supported by the affidavit of Linet Maende, a Director of the Plaintiff company, sworn on 16th June 2025.
10. The application is opposed by the 1st Defendant through the Replying Affidavit of Brian Kimetto, its Legal Officer.
11. The Applicant's case is that after the hearing of the application dated 19th November 2024 and after the parties had filed their submissions, it made additional payments amounting to Kshs. 3,500,000/= towards reduction of the arrears owing to the 1st Defendant.
12. According to the Applicant, the additional payments constitute relevant and material evidence which ought to be considered by the Court before delivering its ruling on the earlier application. The Applicant contends that the payments reduced the arrears substantially and demonstrate its commitment towards regularizing the loan account.
13. It is further argued that no prejudice would be occasioned to the Respondents since they would be afforded an opportunity to respond to the additional documents if necessary. The Applicant urges the Court to invoke its inherent jurisdiction and the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act as well as Article 159(2)(d) of the Constitution in order to achieve substantive justice.
14. The 1st Respondent opposes the application. While admitting that the Applicant made payments totaling Kshs. 3,500,000/=, the 1st Respondent maintains that the said payments do not cure the default.
15. The 1st Respondent states that, despite the payments, the loan account remains in arrears, and the Applicant remains indebted to the Bank in substantial amounts. The 1st Respondent further contends that the Applicant had ample opportunity from the time the suit was filed in November 2024 to regularize its account but only sought to introduce the additional documents on the eve of the scheduled ruling.
16. It is argued that parties had already complied with all directions issued by the Court, filed their respective affidavits and submissions and awaited delivery of the ruling. According to the 1st Respondent, arresting the ruling would occasion prejudice by delaying realization of the security and recovery of the debt due to the Bank. The 1st Respondent therefore urges the Court to dismiss the application with costs.
17. Having considered the application, affidavits and submissions on record, the following issues arise for determination:
i. Whether the Court should admit the additional payment receipts and documents sought to be introduced by the Applicant.
ii. Whether sufficient cause has been established to warrant arresting or deferring the scheduled ruling.
iii. Who should bear the costs of the application.
Analysis
18. The Applicant seeks leave for the Court to consider additional payment receipts allegedly evidencing payments totaling Kshs. 3,500,000/= made after the hearing of the application dated 19th November 2024.
19. The Applicant contends that the receipts demonstrate subsequent developments relevant to the dispute. It is noteworthy that the 1st Respondent expressly acknowledges receipt of the payments. The fact of payment is therefore not disputed. The central dispute between the parties remains whether the Applicant is in default and whether the 1st Respondent is entitled to exercise its remedies under the loan and security documents.
20. The additional receipts merely demonstrate payments made after the hearing of the application. They do not appear to fundamentally alter the issues that were placed before the Court for determination in the earlier application.
21. In the circumstances, while the receipts may be relevant, their evidential value is significantly diminished by the fact that the payments are admitted by the 1st Respondent.
22. The Applicant further seeks an order arresting the ruling which had already been scheduled for delivery. The record shows that parties had filed their affidavits, exchanged submissions and the Court had reserved its ruling. A ruling date had already been fixed.
23. The power to reopen proceedings or arrest a pending ruling is discretionary and must be exercised sparingly and only in exceptional circumstances. Courts must always balance the need to do substantive justice against the equally important principle that litigation must come to an end.
24. The Applicant moved the Court only a few days before the scheduled delivery of the ruling. Although the Applicant has demonstrated that payments were made, it has not demonstrated that those payments fundamentally alter the legal and factual issues that were already before the Court for determination.
25. Indeed, both parties acknowledge that despite the payments, arrears remained outstanding. In my view, the additional payments, though commendable, do not constitute exceptional circumstances warranting reopening proceedings that had already been concluded and were awaiting determination.
26. To halt delivery of the ruling in such circumstances would undermine the principle of finality in litigation and occasion unnecessary delay in the disposal of the matter.
27. The Applicant argues that no prejudice would be suffered by the Respondents. I am unable to agree. The 1st Respondent had already participated fully in the proceedings and was legitimately entitled to expect determination of the application on the date fixed by the Court.
28. Arresting the ruling would inevitably delay resolution of the dispute and postpone the 1st Respondent's pursuit of its contractual remedies. I therefore find that prejudice would indeed be occasioned to the 1st Respondent if the orders sought were granted.
29. Having considered the application, the affidavits on record and the submissions of counsel, I am not persuaded that the Applicant has established sufficient grounds to warrant admission of the additional documents at this stage or to justify arresting the ruling that had already been scheduled for delivery.
30. The additional payments relied upon by the Applicant are not disputed by the 1st Respondent and do not fundamentally alter the issues that were before the Court for determination in the application dated 19th November 2024.
31. The interests of justice and the need for finality in litigation militate against reopening proceedings that had already been concluded and reserved for ruling.
32. In respect to the application dated 19th November 2024, I find that the same has been overtaken by events. The Applicant is in admission of being in arears of the loan account. The Applicant through it advocates on record sought for time to regularize the loan account.
33. I make reference to the proceedings of 16th July 2025, 11th November 2025, 19th March 2026, 14th May 2026 and 16th June 2026. Still the Applicant did not make good of his undertakings to regularize the loan account. The proceedings must come to an end. The parties are at liberty to engage pending the hearing and determination of the main suit.
34. Accordingly, the Notice of Motion dated 16th June 2025 is hereby dismissed. Costs shall be in the cause.
Dated and delivered virtually at Mombasa this 6th day of August, 2026.
………………………………
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
Mr. Kirui Advocate for the Plaintiff/ Applicant
Mr. Shimoli Advocate for the Defendants/ Respondents
Ms. Salwa, Court Assistant.
2. The Applicant stated that on 23rd May, 2022 the 1st Defendant/ Respondent advanced a credit facility of Kshs. 56,000,000 which was to be repaid in 120 months with a monthly instalment of Kshs. 836,141/=. The Applicant admits defaulting in the repayment of instalments in September 2024. It repaid Kshs. 200,000/= of the defaulted amount. Despite the repayment, the Defendant/ Respondents made a demand of Kshs. 54, 326,948 which was not the correct position as it had made several deposits towards settlement of the arrears.
3. The facility was to run for 120 months, hence the repayment period had not lapsed. If the suit property is to be sold by way of auction, the Applicant will be condemned to lose its property yet the loan amount had substantially been liquidated.
4. In the Replying Affidavit dated 2nd December 2024 sworn by Paul Chelang’a, the Recoveries Manager within the 1st defendant/ respondent’s Credit department deponed that the Applicant fell into arrears within the first few months after being advanced a credit facility of Kshs. 56,000,000/=. The 1st Respondent wrote to the Applicant seeking to have the loan account regularized as it had arrears of Kshs. 1,905,180.81//= as at 1st March 2023. In default of regularization of the loan account, the 1st Respondent issued the 90 days Statutory Notice on 22nd June 2023, and further on 6th November 2023, the Applicant was issued with the 40 days’ notice of intention to sell.
5. With the Applicant having been given more than enough time to regularize its loan account, on 30th August, 2024, the 1st Respondent instructed the 2nd Respondent to proceed and advertise the suit property for sale. On 17th September 2024, the 1st Respondent issued the Applicant with 45 days’ Notice to Redeem the suit property. On 19th November 2024, the Applicant wrote to the 1st Respondent stating that it had paid Kshs. 3,750,000/= leaving arrears of Kshs. 240,000/=. On the same date, the Applicant drew the application seeking the above mentioned orders.
6. The court granted interim orders restraining the Respondents from selling the suit property by way of auction pending the hearing and determination of the application. On 4th December 2024, directions were issued that the application be canvassed by way of written submissions, and a ruling date fixed for 31st July 2025.
7. Pending the ruling, the Applicant filed a Notice of Motion dated 16th June 2025 brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules.
8. The application seeks the following orders principally:
a. Spent
b. That this Court be pleased to arrest the ruling pertaining to the application dated 19th November 2024 which had been scheduled for delivery on 19th June 2025.
c. That this Court be pleased to admit and consider additional payment receipts filed by the Applicant before delivery of the said ruling.
d. That costs be in the cause.
9. The application is supported by the affidavit of Linet Maende, a Director of the Plaintiff company, sworn on 16th June 2025.
10. The application is opposed by the 1st Defendant through the Replying Affidavit of Brian Kimetto, its Legal Officer.
11. The Applicant's case is that after the hearing of the application dated 19th November 2024 and after the parties had filed their submissions, it made additional payments amounting to Kshs. 3,500,000/= towards reduction of the arrears owing to the 1st Defendant.
12. According to the Applicant, the additional payments constitute relevant and material evidence which ought to be considered by the Court before delivering its ruling on the earlier application. The Applicant contends that the payments reduced the arrears substantially and demonstrate its commitment towards regularizing the loan account.
13. It is further argued that no prejudice would be occasioned to the Respondents since they would be afforded an opportunity to respond to the additional documents if necessary. The Applicant urges the Court to invoke its inherent jurisdiction and the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act as well as Article 159(2)(d) of the Constitution in order to achieve substantive justice.
14. The 1st Respondent opposes the application. While admitting that the Applicant made payments totaling Kshs. 3,500,000/=, the 1st Respondent maintains that the said payments do not cure the default.
15. The 1st Respondent states that, despite the payments, the loan account remains in arrears, and the Applicant remains indebted to the Bank in substantial amounts. The 1st Respondent further contends that the Applicant had ample opportunity from the time the suit was filed in November 2024 to regularize its account but only sought to introduce the additional documents on the eve of the scheduled ruling.
16. It is argued that parties had already complied with all directions issued by the Court, filed their respective affidavits and submissions and awaited delivery of the ruling. According to the 1st Respondent, arresting the ruling would occasion prejudice by delaying realization of the security and recovery of the debt due to the Bank. The 1st Respondent therefore urges the Court to dismiss the application with costs.
17. Having considered the application, affidavits and submissions on record, the following issues arise for determination:
i. Whether the Court should admit the additional payment receipts and documents sought to be introduced by the Applicant.
ii. Whether sufficient cause has been established to warrant arresting or deferring the scheduled ruling.
iii. Who should bear the costs of the application.
Analysis
18. The Applicant seeks leave for the Court to consider additional payment receipts allegedly evidencing payments totaling Kshs. 3,500,000/= made after the hearing of the application dated 19th November 2024.
19. The Applicant contends that the receipts demonstrate subsequent developments relevant to the dispute. It is noteworthy that the 1st Respondent expressly acknowledges receipt of the payments. The fact of payment is therefore not disputed. The central dispute between the parties remains whether the Applicant is in default and whether the 1st Respondent is entitled to exercise its remedies under the loan and security documents.
20. The additional receipts merely demonstrate payments made after the hearing of the application. They do not appear to fundamentally alter the issues that were placed before the Court for determination in the earlier application.
21. In the circumstances, while the receipts may be relevant, their evidential value is significantly diminished by the fact that the payments are admitted by the 1st Respondent.
22. The Applicant further seeks an order arresting the ruling which had already been scheduled for delivery. The record shows that parties had filed their affidavits, exchanged submissions and the Court had reserved its ruling. A ruling date had already been fixed.
23. The power to reopen proceedings or arrest a pending ruling is discretionary and must be exercised sparingly and only in exceptional circumstances. Courts must always balance the need to do substantive justice against the equally important principle that litigation must come to an end.
24. The Applicant moved the Court only a few days before the scheduled delivery of the ruling. Although the Applicant has demonstrated that payments were made, it has not demonstrated that those payments fundamentally alter the legal and factual issues that were already before the Court for determination.
25. Indeed, both parties acknowledge that despite the payments, arrears remained outstanding. In my view, the additional payments, though commendable, do not constitute exceptional circumstances warranting reopening proceedings that had already been concluded and were awaiting determination.
26. To halt delivery of the ruling in such circumstances would undermine the principle of finality in litigation and occasion unnecessary delay in the disposal of the matter.
27. The Applicant argues that no prejudice would be suffered by the Respondents. I am unable to agree. The 1st Respondent had already participated fully in the proceedings and was legitimately entitled to expect determination of the application on the date fixed by the Court.
28. Arresting the ruling would inevitably delay resolution of the dispute and postpone the 1st Respondent's pursuit of its contractual remedies. I therefore find that prejudice would indeed be occasioned to the 1st Respondent if the orders sought were granted.
29. Having considered the application, the affidavits on record and the submissions of counsel, I am not persuaded that the Applicant has established sufficient grounds to warrant admission of the additional documents at this stage or to justify arresting the ruling that had already been scheduled for delivery.
30. The additional payments relied upon by the Applicant are not disputed by the 1st Respondent and do not fundamentally alter the issues that were before the Court for determination in the application dated 19th November 2024.
31. The interests of justice and the need for finality in litigation militate against reopening proceedings that had already been concluded and reserved for ruling.
32. In respect to the application dated 19th November 2024, I find that the same has been overtaken by events. The Applicant is in admission of being in arears of the loan account. The Applicant through it advocates on record sought for time to regularize the loan account.
33. I make reference to the proceedings of 16th July 2025, 11th November 2025, 19th March 2026, 14th May 2026 and 16th June 2026. Still the Applicant did not make good of his undertakings to regularize the loan account. The proceedings must come to an end. The parties are at liberty to engage pending the hearing and determination of the main suit.
34. Accordingly, the Notice of Motion dated 16th June 2025 is hereby dismissed. Costs shall be in the cause.
Dated and delivered virtually at Mombasa this 6th day of August, 2026.
………………………………
HON. F. WANGARI
JUDGE OF THE HIGH COURT
In the presence of: -
Mr. Kirui Advocate for the Plaintiff/ Applicant
Mr. Shimoli Advocate for the Defendants/ Respondents
Ms. Salwa, Court Assistant.