HEPA GENERAL AGENCIES LIMITED AND LYDIA NYABUTO AND 3 Others VS NCBA BANK KENYA PLC

1. The Court is called upon to rule on the Plaintiffs/Applicants’ Notice of Motion dated 18^th March 2025, seeking a temporary injunction to prevent the Respondent, its agents, auctioneers or anyone acting on its behalf from interfering, disposing off, selling whether by public auction or taking any further action to seize the Applicants properties, L.R No. 37/242/9 and L.R No. NAIROBI/BLOCK 72/1713 LANGATA (hereinafter the suit properties).
2. The application is supported by an affidavit of the 3^rd Applicant Catherine Nyabuto, sworn on 18^th March 2025, who avers that the 1^st Applicant obtained a loan of Kshs. 168 million from the Respondent which was secured by charges over the suit properties. And that the 2^nd – 5^th Applicants, who are the directors of the 1^st Applicant Company were not aware of the existence of the loan.
3. It is contended that the 2^nd – 5^th Applicants only became aware of the loan’s existence as at the date of filing this suit during a routine inspection exercise when they learnt of a public auction scheduled for today 19^th March 2025. The Applicants argue that if the orders sought are not granted they will be prejudiced as they risk losing valuable property and assets without an opportunity to defend their rights. They contend that they have had no opportunity to assess the validity of the loan or explore possible remedies.
4. In response, Christine Wahome, the Respondent’s Senior Legal Counsel - Retail, swore a replying affidavit on 19^th March 2025, and argued that the issues herein are substantially in issue in HCCOMM E598/2024 wherein orders of injunction were declined. And therefore, the instant application is res judicata and an abuse of the court process, as a similar application was filed in HCCOMM E598/2024, with the court ruling on it on 20^th December 2024.
5. According to Ms. Wahome the current matter is also sub judice as there is a previously instituted application dated 24^th February 2025 which comes up for compliance and further directions on 22^nd May 2025. And further there exists an application and appeal at the Court of Appeal vide Civil Appeal and Application No. E055 of 2025, where directions as to hearing were issued.
6. Ms. Wahome also asserts that the Respondent followed all statutory procedures, including issuing the necessary notices. That the Applicants have unequivocally admitted being indebted to the Respondent, having defaulted on their loan repayment obligations.
7. Having carefully reviewed the application, the affidavits and the oral submissions of counsel, the primary issue for determination is whether the application for a temporary injunction is merited, particularly in light of the legal objections raised concerning the principles of res judicata and sub judice. Having been raised in the Respondent’s replying affidavit, this objection cannot be disregarded and warrants careful consideration before addressing the merits of the application.
8. The principle of res judicata, enshrined in Section 7 of the Civil Procedure Act, prohibits a court from adjudicating a matter that has already been decided by a court of competent jurisdiction. The question that arises is whether the matter in question in the current application is identical to the one previously adjudicated, and whether the outcome of that prior decision should preclude the Applicants from seeking a similar remedy.
9. Upon reviewing the record, I have noted that the subject matter in this application is substantially the same as that of the application dated 4^th October 2024 in HCCOMM E598/2024. Both applications seek injunction reliefs against the sale of LR No. 37/242/9 and L.R No. Block/72/1713 Langata (suit properties herein. The core issue in both cases, therefore, is identical, same loan amounts and same securities.
10. As for the parties involved, it is notable that the 1^st Applicant and the Respondent are the same in both applications. The only difference is that there is inclusion of the 2^nd – 5^th Applicants in the instant case. The introduction of the 2^nd – 5^th Applicants, who are the directors of the 1^st Applicant appears to be a strategic attempt to broaden the scope of the application, effectively seeking to litigate the same issues under a slightly altered framework. This cannot circumvent the doctrine of res judicata, as it is well-established that parties cannot avoid its application merely by adding new parties or causes of action (See Omondi v National Bank of Kenya Limited and Others (2001) EA 177).
11. The next issue to consider is whether the previous suit (HCCOMM E598/2024), in which the application was filed on 4^th October 2024, was concluded by a court of competent jurisdiction. The application was heard and determined on 20^th December 2024, and was dismissed by the Court. Later, an attempt to review and /or vary the dismissal orders was made by filing the application dated 13^th March 2025. The court declined to grant the orders sought. It is therefore clear that the issue raised in this application has already been considered by the court. Given the court’s decision to reject the Applicant’s request for an injunction, it is my conclusion that the present application bears elements of res judicata and, as such, ought to be struck out.
12. The Respondent further raises the issue of sub judice, a principle defined as referring to a matter that is "before a court for determination.” -(Black’s Law Dictionary (9th Edition). Sub judice, as articulated in Section 6 of the Civil Procedure Act, prevents a court from proceeding with the trial of a suit if the matter in issue is substantially the same as one pending before a court of competent jurisdiction.
13. Both the current and the prior applications challenge the statutory power of sale by the bank and seek an injunction against the sale of the suit properties. The reliefs sought in both applications are identical. Given that the issue of the injunction is substantially similar, the decision made by this court in the earlier application should be binding and does not warrant re-examination.
14. The Applicant, dissatisfied with the ruling of 20^th December 2025, filed an appeal to the Court of Appeal, where the matter is currently pending. Since the issues in the present application were already fully dealt with by this court, any attempt to re-litigate them here is improper and may amount to an abuse of the judicial process. 
15. In Thiba Min Hydro Co. Ltd v Josphat Karu Ndwiga (2013) eKLR, the court held that:

“…it is not the form of the suit that determines whether it is sub judice, but rather the substance of the case.”

1. It is clear that the issues in both applications are substantively identical, and there is no justification for having two parallel proceedings on the same matter. This would only lead to unnecessary duplication of judicial work and the risk of conflicting decisions.
2. Based on the foregoing considerations, it is clear that the present application is precluded by both the doctrines of res judicata and sub judice. The Applicants have already had an opportunity to present their case for an injunction, and the matter is currently pending before the Court of Appeal. As such, this court cannot revisit or entertain the same issues while the appeal remains unresolved.
3. In light of the above, I find that the Applicant's motion for a temporary injunction constitutes an abuse of the court process, and the same must fail. The upshot is that Notice of Motion dated 18^th March 2025 is bereft of merit and is dismissed with costs to the Respondent.

RULING delivered virtually, dated and signed at NAIROBI

This 19^th day of March 2025.

PETER M. MULWA

JUDGE

In the presence of:

Mr. Ongoto for Plaintiffs/applicants

Ms. Mutisya for Defendant/respondent

Court Assistant: Carlos