RULING.
Introduction.
1. This Petition herein is dated 20 th August 2024 and was filed on the 27 th August 2024 and therein the Petitioner seeks for various reliefs as against the Respondents. The prayers are set out at page 15 and 16 of the Petition and these are:
i. A declaration to issue against the 1st Respondent, in favour of the Petitioner, that by imposing interest amounts and penalties or fines on the said Petitioner that exceeds the principal amount of Kshs. 990,000.00, the 1st Respondent is in contravention of Article 27(1) & (2), Article 43(1)(e) & (3) and 46(1) (c) & (3) of the Constitution.
ii. A declaration to issue against the 1st Respondent is not entitled to claim or recover from the Petitioner any amount exceeding Kshs. 990,000.00 in interest and penalties in contravention of the in duplum rule.
iii. A declaration to issue that sections 14, 19, 19A, 26, 32 and 33 of the Agricultural Finance Corporation Act, Cap 323 of the Laws of Kenya is unconstitutional to the extent that it allows the 1st Respondent to charge interest, penalties and/or fines that exceed the principal amount advanced.
iv. A declaration to issue against the 1st Respondent, in favour of the Petitioner, that in commencing exercising its statutory power of sale with intent to sell the Petitioner's land parcel known as KITALE MUNICIPALITY BLOCK 1/LESSOS/539 based on an outstanding loan amount, in interests and penalties, that exceeds double the amount advanced is in contravention of Article 40 (1) & (2) of the Constitution of Kenya 2010.
v. Costs of the Petition be provided for
vi. Any other appropriate relief that the Honourable Court may deem fit to grant .
2. The Petition is supported by the Affidavit of the Petitioner which is undated, and the annexures to the Affidavit, from number 1 to 15.
3. Upon being served with the Petition, the 1st Respondent did file Reply to the Petition and also a Notice of Preliminary Objection, both dated 11 th November 2024. The Notice of the Preliminary Objection seeks the Petition to be dismissed for the reasons that:
“ a. THAT the Court lacks the jurisdiction to admit, hear and determine the Petition dated 20th August 2024 and filed in court on 27th August 2024.
b. THAT the suit is res judicata after the Petitioner herein filed a similar suit with similar parties and similar prayers in Kitale Civil Suit No. 372 of 2018 (Francis Luseno Ashono vs Agricultural Finance Corporation and which suit was heard and determined on merit court on 6th October, 2022
c. THAT the suit before this Honourable Court is scandalous, frivolous and vexatious, otherwise an abuse of the due process of this Honourable court ”.
4. I propose to first dispense with the issue of the Preliminary Objection filed by the Respondents. In the Petition filed before the court, the Petitioner did annex a copy of the proceedings in Kitale CMCC No. 372 of 2018, Francis Luseno Ashiono vs Agricultural Finance Corporation . The suit was filed on the 13 th September 2018 and sought the following reliefs:
a. A declaration that the acts/omissions by the Defendant in seeking to exercise the charges statutory power of sale are unlawful coupled with perpetual injunction seeking to restrain the Defendant whether by itself, its servants and/or agents from selling or transferring the land parcel known as KITALE MUNICIPALITY BLOCK 1/(LESSOS)/539 – SWARS AREA.
b. Costs and interest .
5. The Defendants filed their defence to the claim and after a full hearing, judgment in the said matter was delivered on the 6 th October 2022. Section 7 of the Civil Procedure Act provides as follows:
“ Res judicata
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 ”.
6. There is no doubt that save for the addition of the 2 nd Respondent herein, the parties in the suit before the subordinate Court and the present petition are the same. The subject matter is the same and revolved around the default by the Petitioner to service the loan facility extended to him by the 1 st Defendant and the 1 st Defendants exercise of their statutory power of sale over the charged property. The Petitioner in that suit had also challenged the interest rates charged by the 1 st Defendant on the loan facility. Those are substantially the same issues sought in the present petition as granting the same would have the effect of reversing the decision of the subordinate court and unprocedurally sitting on appeal on the said decision.
7. If the Petitioner had wished for the present declarations to be made, he had the opportunity to so seek before filing the former suit. He did not do so. Explanation 4 under section 7 of the CPA cited herein above provides as follows:
“( 4) 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 ”.
In essence, the Petitioner ought to have filed the former suit before the appropriate court for all the issues, including the current reliefs to be considered at ago. He did not do so.
8. In that regard, I am persuaded on the uncontested facts herein and considering the provisions of section 7 of the CPA that the present suit falls afoul of section 7 of the CPA.
9. I am cognisant of the authorities cited by the Petitioner, including D.T. Dobie & Co. (Kenya) Ltd vs Muchina (1982) KLR 1 and Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission& Others, (Civil Appeal 228 of 2013) (2013) KEHC 113 (KLR) (22 November 2013) (Ruling ), where the courts stated that the power to strike out pleadings should be exercised sparingly so as not to deprive a party of the opportunity to be heard.
10. The right to be heard is sacrosanct. A party should not be denied the same except as provided for under the Constitution and statute. In the present case, the petitioner is not being sent away unheard as he has already been heard and a determination made. What he seeks is a second bite of the cherry, on the same issues already heard and a determined. He did not prefer an appeal on those issues. To bring them back clothed as constitutional issues is thus to offend section 7 of the CPA.
11. I am thus inclined to find merit in the Preliminary Objection with the consequence that the Petition herein filed on the 27 th August 2024 is struck out with costs to the 1 st Respondent .
Dated, signed and delivered virtually via Microsoft Teams this 3 rd September 2026.
HC CHR PET NO. E021 OF 2024 FRANCIS L. ASHONO VS AGRICULTURAL F. CORP & HON. AG RULING Pg. 5
Introduction.
1. This Petition herein is dated 20 th August 2024 and was filed on the 27 th August 2024 and therein the Petitioner seeks for various reliefs as against the Respondents. The prayers are set out at page 15 and 16 of the Petition and these are:
i. A declaration to issue against the 1st Respondent, in favour of the Petitioner, that by imposing interest amounts and penalties or fines on the said Petitioner that exceeds the principal amount of Kshs. 990,000.00, the 1st Respondent is in contravention of Article 27(1) & (2), Article 43(1)(e) & (3) and 46(1) (c) & (3) of the Constitution.
ii. A declaration to issue against the 1st Respondent is not entitled to claim or recover from the Petitioner any amount exceeding Kshs. 990,000.00 in interest and penalties in contravention of the in duplum rule.
iii. A declaration to issue that sections 14, 19, 19A, 26, 32 and 33 of the Agricultural Finance Corporation Act, Cap 323 of the Laws of Kenya is unconstitutional to the extent that it allows the 1st Respondent to charge interest, penalties and/or fines that exceed the principal amount advanced.
iv. A declaration to issue against the 1st Respondent, in favour of the Petitioner, that in commencing exercising its statutory power of sale with intent to sell the Petitioner's land parcel known as KITALE MUNICIPALITY BLOCK 1/LESSOS/539 based on an outstanding loan amount, in interests and penalties, that exceeds double the amount advanced is in contravention of Article 40 (1) & (2) of the Constitution of Kenya 2010.
v. Costs of the Petition be provided for
vi. Any other appropriate relief that the Honourable Court may deem fit to grant .
2. The Petition is supported by the Affidavit of the Petitioner which is undated, and the annexures to the Affidavit, from number 1 to 15.
3. Upon being served with the Petition, the 1st Respondent did file Reply to the Petition and also a Notice of Preliminary Objection, both dated 11 th November 2024. The Notice of the Preliminary Objection seeks the Petition to be dismissed for the reasons that:
“ a. THAT the Court lacks the jurisdiction to admit, hear and determine the Petition dated 20th August 2024 and filed in court on 27th August 2024.
b. THAT the suit is res judicata after the Petitioner herein filed a similar suit with similar parties and similar prayers in Kitale Civil Suit No. 372 of 2018 (Francis Luseno Ashono vs Agricultural Finance Corporation and which suit was heard and determined on merit court on 6th October, 2022
c. THAT the suit before this Honourable Court is scandalous, frivolous and vexatious, otherwise an abuse of the due process of this Honourable court ”.
4. I propose to first dispense with the issue of the Preliminary Objection filed by the Respondents. In the Petition filed before the court, the Petitioner did annex a copy of the proceedings in Kitale CMCC No. 372 of 2018, Francis Luseno Ashiono vs Agricultural Finance Corporation . The suit was filed on the 13 th September 2018 and sought the following reliefs:
a. A declaration that the acts/omissions by the Defendant in seeking to exercise the charges statutory power of sale are unlawful coupled with perpetual injunction seeking to restrain the Defendant whether by itself, its servants and/or agents from selling or transferring the land parcel known as KITALE MUNICIPALITY BLOCK 1/(LESSOS)/539 – SWARS AREA.
b. Costs and interest .
5. The Defendants filed their defence to the claim and after a full hearing, judgment in the said matter was delivered on the 6 th October 2022. Section 7 of the Civil Procedure Act provides as follows:
“ Res judicata
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 ”.
6. There is no doubt that save for the addition of the 2 nd Respondent herein, the parties in the suit before the subordinate Court and the present petition are the same. The subject matter is the same and revolved around the default by the Petitioner to service the loan facility extended to him by the 1 st Defendant and the 1 st Defendants exercise of their statutory power of sale over the charged property. The Petitioner in that suit had also challenged the interest rates charged by the 1 st Defendant on the loan facility. Those are substantially the same issues sought in the present petition as granting the same would have the effect of reversing the decision of the subordinate court and unprocedurally sitting on appeal on the said decision.
7. If the Petitioner had wished for the present declarations to be made, he had the opportunity to so seek before filing the former suit. He did not do so. Explanation 4 under section 7 of the CPA cited herein above provides as follows:
“( 4) 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 ”.
In essence, the Petitioner ought to have filed the former suit before the appropriate court for all the issues, including the current reliefs to be considered at ago. He did not do so.
8. In that regard, I am persuaded on the uncontested facts herein and considering the provisions of section 7 of the CPA that the present suit falls afoul of section 7 of the CPA.
9. I am cognisant of the authorities cited by the Petitioner, including D.T. Dobie & Co. (Kenya) Ltd vs Muchina (1982) KLR 1 and Nicholas Kiptoo Arap Korir Salat vs Independent Electoral and Boundaries Commission& Others, (Civil Appeal 228 of 2013) (2013) KEHC 113 (KLR) (22 November 2013) (Ruling ), where the courts stated that the power to strike out pleadings should be exercised sparingly so as not to deprive a party of the opportunity to be heard.
10. The right to be heard is sacrosanct. A party should not be denied the same except as provided for under the Constitution and statute. In the present case, the petitioner is not being sent away unheard as he has already been heard and a determination made. What he seeks is a second bite of the cherry, on the same issues already heard and a determined. He did not prefer an appeal on those issues. To bring them back clothed as constitutional issues is thus to offend section 7 of the CPA.
11. I am thus inclined to find merit in the Preliminary Objection with the consequence that the Petition herein filed on the 27 th August 2024 is struck out with costs to the 1 st Respondent .
Dated, signed and delivered virtually via Microsoft Teams this 3 rd September 2026.
HC CHR PET NO. E021 OF 2024 FRANCIS L. ASHONO VS AGRICULTURAL F. CORP & HON. AG RULING Pg. 5