The applicant filed this suit seeking to have motor vehicle registration number KDJ 814A which is registered to the respondents forfeited to the government for reason of it being proceeds of crime. Upon being served with the originating motion, the 1 st respondent filed a notice of preliminary objection dated 28 th October 2025 which was in the following terms;
1. That the instant application offends the doctrine of sub judice under Section 6 of the Civil Procedure Act, Cap 21, Laws of Kenya, as the subject motor vehicle registration number KDJ 814A, Mazda Demio, White is directly and substantially in issue in JKIA Chief Magistrate’s Criminal Case No. E045 of 2023, Republic v. Latif Mohamed & Others, which is pending determination before a competent court.
2. That this Honourable Court cannot exercise forfeiture jurisdiction under Sections 90 and 92 of POCAMLA in respect of property that is sub judice before a criminal court.
3. That the concurrency of this suit alongside the said criminal case amounts to pre-empting issues pending before the criminal court, contrary to the principle of comity of courts and the constitutional right to a fair trial under Article 50(2) of the Constitution of Kenya, 2010 .
4. That the application offends the constitutional protection against double jeopardy under Article 50(2)(o).
5. That the application violates the presumption of innocence guaranteed under Article 50(2)(a) of the Constitution.
6. That the application is premature, incompetent, and an abuse of the court process, as the property forming the subject of forfeiture, motor vehicle registration number KDJ 814A is currently held by the Directorate of Criminal Investigations (DCI) as an exhibit pending the outcome of the criminal proceedings in JKIA Chief Magistrate’s Criminal Case No. E045 of 2023, Republic v. Latif Mohamed & Others and therefore not available for forfeiture.
7. That this suit is frivolous, vexatious and an abuse of the court process.
This court ordered that the preliminary objection be argued by way of written submissions which parties have complied with. I have read the 1 st respondent’s submissions dated 27 th November 2025 and those of the applicant dated 2 nd December 2025. This court is of the opinion that the seven points raised in the notice of preliminary objection can be collapsed into one, that is, this suit is sub judice JKIA Chief Magistrate’s Criminal case number E045 of 2023, Republic v Latif Mohamed & others which is said to be pending determination before a competent court.
This court restates the well-known principle defining what constitutes a preliminary objection which is that; it entails an issue that is purely a point of law which does not need deep interrogation or arguments on facts or evidence and which is capable of disposing the whole suit. If there are issues of facts raised in the objection or if the court would in making its decision on the same need to analyze matters of evidence or facts, the same does not qualify to be a preliminary objection. In Lorunyei & another v Attorney General & others [2023] KEHC 1611 (KLR), Honourable Justice A.C. Mrima held that;
‘The validity of any preliminary objection is gauged against the requirement that it must raise pure issues of law capable of disposing of a dispute at once. It is, therefore, mandatory for a Court to ascertain that a preliminary objection is not caught up within the realm of factual issues that would necessitate the calling of evidence.’
In further elaboration, a preliminary objection must be one that is discernable from looking at the pleadings only in comparison with the existing law. Pleadings in the matter of this nature are the origination motion and affidavits filed in support and opposition of the motion. The respondents have not filed any response other than the preliminary objection so the only pleadings this court can revert to in identifying the merits of the preliminary objection are the notice of motion and supporting affidavit dated 29 th November 2024.
Although there is no replying affidavit, it is indisputable that the criminal case mentioned in the preliminary objection exists as the same is also mentioned in the paragraph 11 of the applicant’s supporting affidavit. Therefore, the only question for determination is whether this suit can be struck out for being sub judice the said criminal case.
The sub judice rule which is anchored in Section 6 of the Civil Procedure Act posits that no suit should proceed if there is a similar suit pending before another court of competent jurisdiction involving the same parties. The Section provides that;
‘No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.’
In my view, this Section does not provide for striking out a suit which is sub judice but staying the same. As stated earlier in this ruling, a preliminary objection is defined as that which will dispose of the matter. A matter which is stayed cannot be said to have been disposed of. It would have been postponed for a period until some other step is taken like disposal of the previously filed suit or withdrawing either of the suits. I am persuaded to follow the holding of Honourable Justice B.N. Olao in Thiba Min. Hydro Co. Ltd v Josphat Karu Ndwiga [2013] KEHC 2017 (KLR) thus;
‘Having considered all the above, I am satisfied that the plea of sub-judice has properly been invoked in this case. However, the remedy is not to strike out this suit as the defendant has asked me to do. Indeed, the marginal notes in Section 6 of the Civil Procedure Act read “ stay of suit ”.'
Based on the above position, it is my view that, the preliminary objection cannot succeed in the manner proposed by the 1 st respondent. The 1 st respondent is not asking this court to stay this suit but to determine the validity of the same. Questioning validity of a suit is the same as saying that it is incompetent and should be struck out or dismissed.
In the above context, I hold that the sub judice rule does not fit in the definition and cannot in its nature be raised as a preliminary objection. A party who wishes to invoke the rule must file an appropriate application and place evidence before the court and convince the court on the similarity of the two or more matters and provide the status of each. In the matter before me, I have not been told the status of the criminal case or the nature of evidence set to be adduced in the said case. Further, the parties in the two matters are obviously not the same and the courts are exercising different jurisdictions.
It is the position of the law that existence of criminal proceedings does not invalidate subsequent or parallel civil suits. This position is fortified in two legal regimes, that is, Section 193A of the Criminal Procedure Code and Section 92(4) of the Proceeds of Crime and Anti-Money Laundering Act. The two Sections provide as follows;
193A Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.
92(4) The valid ity of an order under subsection (1) is not affected by the outcome of criminal proceedings, or of an investigation with a view to institute such proceedings, in respect of an offence with which the property concerned is in some way associated.
The above positions have been subjects of judicial authorities and the courts have been firm that there is nothing in law that prevents parties from concurrently pursuing their claims through both civil and criminal proceedings. Actually, not even an acquittal or conviction in the criminal case will affect the validity of any order made in the civil forfeiture proceedings. The two are independent.
In Njoroge & 2 others v Directorate of Criminal Investigations & another [2026] KEHC 1504 (KLR), it was held;
‘The fact that there are civil proceeding that are pending beforeanother forum is not a bar to the criminal prosecution that is pendingbefore the criminal court that the Applicants think to challenge.’
And Honourable Lady Justice Mumbi Ngugi (as she then was) held in Assets Recovery agency v James Thuita Nderitu & 6 others [2020] KEHC 6033 (KLR), that;
‘I agree with the sentiments expressed by the courts in the above decisions. A conviction in a criminal trial is not necessary before a suit for recovery of funds or other assets reasonably believed to be proceeds of crime is instituted. As is provided in section 92(4) of POCAMLA, even where an investigation or prosecution is launched, its outcome does not have an impact on a suit for recovery of proceeds of crime. I accordingly find that the response to the first issue in this matter is in the negative. The present application is not premature. As the outcome of criminal proceedings does not, under the law, have a bearing on forfeiture proceedings, the applicant does not have to await the conclusion of a criminal trial before instituting civil proceedings for recovery of funds or assets reasonably believed to be proceeds of crime.’
The conclusion of the above discussion is that the preliminary objection dated 28 th October 2025 lacks merits and the same is overruled. Costs of the same are awarded to the applicant.
Dated, signed and delivered at Nairobi this 13 th day of March 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Ruling delivered in presence of Miss Arum holding brief for Mr. Nzakyo for the respondent and in absence of the applicant.
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1. That the instant application offends the doctrine of sub judice under Section 6 of the Civil Procedure Act, Cap 21, Laws of Kenya, as the subject motor vehicle registration number KDJ 814A, Mazda Demio, White is directly and substantially in issue in JKIA Chief Magistrate’s Criminal Case No. E045 of 2023, Republic v. Latif Mohamed & Others, which is pending determination before a competent court.
2. That this Honourable Court cannot exercise forfeiture jurisdiction under Sections 90 and 92 of POCAMLA in respect of property that is sub judice before a criminal court.
3. That the concurrency of this suit alongside the said criminal case amounts to pre-empting issues pending before the criminal court, contrary to the principle of comity of courts and the constitutional right to a fair trial under Article 50(2) of the Constitution of Kenya, 2010 .
4. That the application offends the constitutional protection against double jeopardy under Article 50(2)(o).
5. That the application violates the presumption of innocence guaranteed under Article 50(2)(a) of the Constitution.
6. That the application is premature, incompetent, and an abuse of the court process, as the property forming the subject of forfeiture, motor vehicle registration number KDJ 814A is currently held by the Directorate of Criminal Investigations (DCI) as an exhibit pending the outcome of the criminal proceedings in JKIA Chief Magistrate’s Criminal Case No. E045 of 2023, Republic v. Latif Mohamed & Others and therefore not available for forfeiture.
7. That this suit is frivolous, vexatious and an abuse of the court process.
This court ordered that the preliminary objection be argued by way of written submissions which parties have complied with. I have read the 1 st respondent’s submissions dated 27 th November 2025 and those of the applicant dated 2 nd December 2025. This court is of the opinion that the seven points raised in the notice of preliminary objection can be collapsed into one, that is, this suit is sub judice JKIA Chief Magistrate’s Criminal case number E045 of 2023, Republic v Latif Mohamed & others which is said to be pending determination before a competent court.
This court restates the well-known principle defining what constitutes a preliminary objection which is that; it entails an issue that is purely a point of law which does not need deep interrogation or arguments on facts or evidence and which is capable of disposing the whole suit. If there are issues of facts raised in the objection or if the court would in making its decision on the same need to analyze matters of evidence or facts, the same does not qualify to be a preliminary objection. In Lorunyei & another v Attorney General & others [2023] KEHC 1611 (KLR), Honourable Justice A.C. Mrima held that;
‘The validity of any preliminary objection is gauged against the requirement that it must raise pure issues of law capable of disposing of a dispute at once. It is, therefore, mandatory for a Court to ascertain that a preliminary objection is not caught up within the realm of factual issues that would necessitate the calling of evidence.’
In further elaboration, a preliminary objection must be one that is discernable from looking at the pleadings only in comparison with the existing law. Pleadings in the matter of this nature are the origination motion and affidavits filed in support and opposition of the motion. The respondents have not filed any response other than the preliminary objection so the only pleadings this court can revert to in identifying the merits of the preliminary objection are the notice of motion and supporting affidavit dated 29 th November 2024.
Although there is no replying affidavit, it is indisputable that the criminal case mentioned in the preliminary objection exists as the same is also mentioned in the paragraph 11 of the applicant’s supporting affidavit. Therefore, the only question for determination is whether this suit can be struck out for being sub judice the said criminal case.
The sub judice rule which is anchored in Section 6 of the Civil Procedure Act posits that no suit should proceed if there is a similar suit pending before another court of competent jurisdiction involving the same parties. The Section provides that;
‘No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.’
In my view, this Section does not provide for striking out a suit which is sub judice but staying the same. As stated earlier in this ruling, a preliminary objection is defined as that which will dispose of the matter. A matter which is stayed cannot be said to have been disposed of. It would have been postponed for a period until some other step is taken like disposal of the previously filed suit or withdrawing either of the suits. I am persuaded to follow the holding of Honourable Justice B.N. Olao in Thiba Min. Hydro Co. Ltd v Josphat Karu Ndwiga [2013] KEHC 2017 (KLR) thus;
‘Having considered all the above, I am satisfied that the plea of sub-judice has properly been invoked in this case. However, the remedy is not to strike out this suit as the defendant has asked me to do. Indeed, the marginal notes in Section 6 of the Civil Procedure Act read “ stay of suit ”.'
Based on the above position, it is my view that, the preliminary objection cannot succeed in the manner proposed by the 1 st respondent. The 1 st respondent is not asking this court to stay this suit but to determine the validity of the same. Questioning validity of a suit is the same as saying that it is incompetent and should be struck out or dismissed.
In the above context, I hold that the sub judice rule does not fit in the definition and cannot in its nature be raised as a preliminary objection. A party who wishes to invoke the rule must file an appropriate application and place evidence before the court and convince the court on the similarity of the two or more matters and provide the status of each. In the matter before me, I have not been told the status of the criminal case or the nature of evidence set to be adduced in the said case. Further, the parties in the two matters are obviously not the same and the courts are exercising different jurisdictions.
It is the position of the law that existence of criminal proceedings does not invalidate subsequent or parallel civil suits. This position is fortified in two legal regimes, that is, Section 193A of the Criminal Procedure Code and Section 92(4) of the Proceeds of Crime and Anti-Money Laundering Act. The two Sections provide as follows;
193A Notwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.
92(4) The valid ity of an order under subsection (1) is not affected by the outcome of criminal proceedings, or of an investigation with a view to institute such proceedings, in respect of an offence with which the property concerned is in some way associated.
The above positions have been subjects of judicial authorities and the courts have been firm that there is nothing in law that prevents parties from concurrently pursuing their claims through both civil and criminal proceedings. Actually, not even an acquittal or conviction in the criminal case will affect the validity of any order made in the civil forfeiture proceedings. The two are independent.
In Njoroge & 2 others v Directorate of Criminal Investigations & another [2026] KEHC 1504 (KLR), it was held;
‘The fact that there are civil proceeding that are pending beforeanother forum is not a bar to the criminal prosecution that is pendingbefore the criminal court that the Applicants think to challenge.’
And Honourable Lady Justice Mumbi Ngugi (as she then was) held in Assets Recovery agency v James Thuita Nderitu & 6 others [2020] KEHC 6033 (KLR), that;
‘I agree with the sentiments expressed by the courts in the above decisions. A conviction in a criminal trial is not necessary before a suit for recovery of funds or other assets reasonably believed to be proceeds of crime is instituted. As is provided in section 92(4) of POCAMLA, even where an investigation or prosecution is launched, its outcome does not have an impact on a suit for recovery of proceeds of crime. I accordingly find that the response to the first issue in this matter is in the negative. The present application is not premature. As the outcome of criminal proceedings does not, under the law, have a bearing on forfeiture proceedings, the applicant does not have to await the conclusion of a criminal trial before instituting civil proceedings for recovery of funds or assets reasonably believed to be proceeds of crime.’
The conclusion of the above discussion is that the preliminary objection dated 28 th October 2025 lacks merits and the same is overruled. Costs of the same are awarded to the applicant.
Dated, signed and delivered at Nairobi this 13 th day of March 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Ruling delivered in presence of Miss Arum holding brief for Mr. Nzakyo for the respondent and in absence of the applicant.
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