1. I have considered the Notice of Motion dated 27 February 2025 (the Application), the Replying Affidavit sworn on 17 March 2025, the parties’ written and oral submissions, and the applicable law.
2. The matter before this Court is plainly barred by the doctrine of res judicata. The issues raised were fully adjudicated in HCCOMM/E327/2023 Nyoro Construction Company Limited v Kenya Commercial Bank Limited and subsequently before the Court of Appeal in Civil Application No. E626 of 2024 Nyoro Construction Company Limited v Kenya Commercial Bank Kenya Limited. In both decisions, the Defendant’s right to exercise its statutory power of sale over the properties known as L.R. No. 6826/3, 209/10806, and 209/12116/45 was conclusively affirmed. The only property that may not be part of the previous proceedings is property number 209/12116/32. Counsel however admitted that the registered proprietor of that property is Nyoro Construction Limited, and not the Plaintiff.
3. From the exhibits attached to the present Application, it is manifest that the Plaintiff’s claims arise from the same loan facilities and securities that formed the subject of the previous litigation. The documentation shows that Nyoro Construction Company Limited was the borrower under various facilities advanced by the Defendant, secured by, among other instruments, a Guarantee and Indemnity dated 3 March 2021 executed by the Plaintiff in favour of the Defendant, and a Legal Charge dated 2 December 2015 together with a Further Charge dated 30 December 2016 over the various properties
4. It is therefore evident that the same parties and properties were the subject of determination in HCCOMM/E327/2023 before Hon. Justice Mulwa and on appeal before the Court of Appeal in Civil Application No. E626 of 2024.
5. The Bank’s right to sell the suit properties was expressly upheld in the Ruling of Hon. Justice Peter Mulwa delivered on 7 November,, 2024 in HCCOMM/E327/2023 and subsequently affirmed by the Court of Appeal in Civil Application No. E626 of 2024. Both decisions are exhibited as annexure “LS-1” to the Defendant’s Replying Affidavit.
6. It is apparent that the Plaintiff has now instituted the present suit and Application under the name Asphalt Concrete Limited, despite the subject matter and issues having already been determined, with the clear intention of misleading this Court and circumventing the binding determinations of the High Court and Court of Appeal.
7. The Application was filed with material non-disclosure of the previous proceedings and rulings. Such conduct constitutes a serious abuse of the court process and demonstrates a disregard for the duty of candour that every litigant owes to the Court.
8. The Court takes the opportunity to remind counsel of the professional duty borne by every advocate as officers of the Court. An advocate is under a solemn obligation to assist the Court in the administration of justice with utmost honesty and fairness, and not to mislead the Court through suppression of material facts or by deliberately concealing and re-litigating matters already conclusively decided.
9. Finally, the documentation reveals that the properties L.R. No. 209/10806, L.R. No. 209/12116/32, and L.R. No. 209/12116/45 are registered in the name of Nyoro Construction Company Limited and not in the Plaintiff’s name. The Plaintiff therefore lacks locus standi to challenge the Defendant’s statutory power of sale in respect of these properties.
10. For these reasons, I find that the Application is res judicata. Moreover, counsel admitted that the main suit in HCCOMM/E327/2023 is still live, and the matter has been scheduled for pretrial directions before Mulwa, J. in the new term.
11. Section 6 of the Civil Procedure Act provides that parallel proceedings may not take place in respect of the same subject matter. The Application and the entire suit are accordingly struck out with costs to the Defendant.
12. For avoidance of doubt, any interim orders previously issued herein are forthwith discharged.
13. The file is marked as closed.
2. The matter before this Court is plainly barred by the doctrine of res judicata. The issues raised were fully adjudicated in HCCOMM/E327/2023 Nyoro Construction Company Limited v Kenya Commercial Bank Limited and subsequently before the Court of Appeal in Civil Application No. E626 of 2024 Nyoro Construction Company Limited v Kenya Commercial Bank Kenya Limited. In both decisions, the Defendant’s right to exercise its statutory power of sale over the properties known as L.R. No. 6826/3, 209/10806, and 209/12116/45 was conclusively affirmed. The only property that may not be part of the previous proceedings is property number 209/12116/32. Counsel however admitted that the registered proprietor of that property is Nyoro Construction Limited, and not the Plaintiff.
3. From the exhibits attached to the present Application, it is manifest that the Plaintiff’s claims arise from the same loan facilities and securities that formed the subject of the previous litigation. The documentation shows that Nyoro Construction Company Limited was the borrower under various facilities advanced by the Defendant, secured by, among other instruments, a Guarantee and Indemnity dated 3 March 2021 executed by the Plaintiff in favour of the Defendant, and a Legal Charge dated 2 December 2015 together with a Further Charge dated 30 December 2016 over the various properties
4. It is therefore evident that the same parties and properties were the subject of determination in HCCOMM/E327/2023 before Hon. Justice Mulwa and on appeal before the Court of Appeal in Civil Application No. E626 of 2024.
5. The Bank’s right to sell the suit properties was expressly upheld in the Ruling of Hon. Justice Peter Mulwa delivered on 7 November,, 2024 in HCCOMM/E327/2023 and subsequently affirmed by the Court of Appeal in Civil Application No. E626 of 2024. Both decisions are exhibited as annexure “LS-1” to the Defendant’s Replying Affidavit.
6. It is apparent that the Plaintiff has now instituted the present suit and Application under the name Asphalt Concrete Limited, despite the subject matter and issues having already been determined, with the clear intention of misleading this Court and circumventing the binding determinations of the High Court and Court of Appeal.
7. The Application was filed with material non-disclosure of the previous proceedings and rulings. Such conduct constitutes a serious abuse of the court process and demonstrates a disregard for the duty of candour that every litigant owes to the Court.
8. The Court takes the opportunity to remind counsel of the professional duty borne by every advocate as officers of the Court. An advocate is under a solemn obligation to assist the Court in the administration of justice with utmost honesty and fairness, and not to mislead the Court through suppression of material facts or by deliberately concealing and re-litigating matters already conclusively decided.
9. Finally, the documentation reveals that the properties L.R. No. 209/10806, L.R. No. 209/12116/32, and L.R. No. 209/12116/45 are registered in the name of Nyoro Construction Company Limited and not in the Plaintiff’s name. The Plaintiff therefore lacks locus standi to challenge the Defendant’s statutory power of sale in respect of these properties.
10. For these reasons, I find that the Application is res judicata. Moreover, counsel admitted that the main suit in HCCOMM/E327/2023 is still live, and the matter has been scheduled for pretrial directions before Mulwa, J. in the new term.
11. Section 6 of the Civil Procedure Act provides that parallel proceedings may not take place in respect of the same subject matter. The Application and the entire suit are accordingly struck out with costs to the Defendant.
12. For avoidance of doubt, any interim orders previously issued herein are forthwith discharged.
13. The file is marked as closed.