1. This Court dismissed the application dated 25th June 2025 on 13th August 2025 with costs to the 1st Defendant for being an abuse of the Court process. Although their counsel evinced an intention to appeal against the said decision, the Plaintiffs/Respondents do not appear to have pursued the appeal.
2. By a Notice of Motion dated 7th October 2025, the 1st Defendant/Applicant seeks to strike out the instant suit on the ground that it is res judicata or, alternatively, an abuse of the Court's process, and for the costs of the application and the suit to be borne by the Plaintiffs/Respondents jointly and severally.
3. The 1st Defendant/Applicant contends that it is the successor in title to the Spire Bank. It avers that the instant suit is the 6th instance in which the Plaintiffs/Respondents have sought to scuttle the 1st Defendant/Applicant’s exercise of its statutory power of sale over Title No. Mombasa/Block/XVII/797. Vide the affidavit of Mr George M. Mabeya, sworn on 7th October 2025, the history of the matter is set out. In the said deposition, it was shown that the Plaintiffs/Respondents have contested the 1st Defendant/Applicant’s exercise of its statutory power of sale over the said suit of land in Mombasa HCCC No 90 of 2014; Mombasa HCCC No 245 of 2010 and 265 of 2010 (in 2015, 2016, 2022 and 2023 (on 2 occasions)). The deponent annexed the relevant Court rulings.
4. The application was opposed by the plaintiffs/respondents, who filed the sworn deposition of Abdulgader Sharif Saleh dated 1st December 2025, in which it was averred that the cause of action in this case was not similar to those filed previously. The deponent further averred that the instant suit raised a distinct cause of action, which should be heard and determined by this Court on its own merits.
5. The application was canvassed by way of written submissions. I will briefly set out the parties' submissions.
6. The submissions of the Plaintiffs/Respondents are dated 26th January 2026. It is contended that the suits were between different parties and that the latter suit was founded on the ground that there had been proclamation without issuance of ample notices. The Respondent urged, relying on the case of the Cooperative Merchant Bank Ltd V George Fredrick Wekesa, Civil Appeal No. 54 of 1999, that the remedy of striking out pleadings was to be resorted to most sparingly and as a last resort. Further reliance was placed on the decision of the Court in Moore v Lawson [1915] 3 TLR 48.
7. This Court has not seen the submissions of the 1st Respondent/Applicant as they do not appear to have been filed in the CTS.
8. I have considered the matter as well as the previous suits between the parties. I note that the suits were between the same parties or parties litigating under the same title. The respective courts made final decisions on the same after hearings on the merits. In my view, having considered the matter carefully, this suit is res judicata (see the Supreme Court decision in John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR).
9. In those circumstances, I find and hold that this suit is res judicata. Accordingly, I dismiss the same with costs to the 1st Defendant/Applicant.
10. It is so ordered.
Dated and signed in Nairobi this 21st day of August 2026.
2. By a Notice of Motion dated 7th October 2025, the 1st Defendant/Applicant seeks to strike out the instant suit on the ground that it is res judicata or, alternatively, an abuse of the Court's process, and for the costs of the application and the suit to be borne by the Plaintiffs/Respondents jointly and severally.
3. The 1st Defendant/Applicant contends that it is the successor in title to the Spire Bank. It avers that the instant suit is the 6th instance in which the Plaintiffs/Respondents have sought to scuttle the 1st Defendant/Applicant’s exercise of its statutory power of sale over Title No. Mombasa/Block/XVII/797. Vide the affidavit of Mr George M. Mabeya, sworn on 7th October 2025, the history of the matter is set out. In the said deposition, it was shown that the Plaintiffs/Respondents have contested the 1st Defendant/Applicant’s exercise of its statutory power of sale over the said suit of land in Mombasa HCCC No 90 of 2014; Mombasa HCCC No 245 of 2010 and 265 of 2010 (in 2015, 2016, 2022 and 2023 (on 2 occasions)). The deponent annexed the relevant Court rulings.
4. The application was opposed by the plaintiffs/respondents, who filed the sworn deposition of Abdulgader Sharif Saleh dated 1st December 2025, in which it was averred that the cause of action in this case was not similar to those filed previously. The deponent further averred that the instant suit raised a distinct cause of action, which should be heard and determined by this Court on its own merits.
5. The application was canvassed by way of written submissions. I will briefly set out the parties' submissions.
6. The submissions of the Plaintiffs/Respondents are dated 26th January 2026. It is contended that the suits were between different parties and that the latter suit was founded on the ground that there had been proclamation without issuance of ample notices. The Respondent urged, relying on the case of the Cooperative Merchant Bank Ltd V George Fredrick Wekesa, Civil Appeal No. 54 of 1999, that the remedy of striking out pleadings was to be resorted to most sparingly and as a last resort. Further reliance was placed on the decision of the Court in Moore v Lawson [1915] 3 TLR 48.
7. This Court has not seen the submissions of the 1st Respondent/Applicant as they do not appear to have been filed in the CTS.
8. I have considered the matter as well as the previous suits between the parties. I note that the suits were between the same parties or parties litigating under the same title. The respective courts made final decisions on the same after hearings on the merits. In my view, having considered the matter carefully, this suit is res judicata (see the Supreme Court decision in John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR).
9. In those circumstances, I find and hold that this suit is res judicata. Accordingly, I dismiss the same with costs to the 1st Defendant/Applicant.
10. It is so ordered.
Dated and signed in Nairobi this 21st day of August 2026.