' Background and Introduction
1. This Ruling determines the Notice of Preliminary Objection raised by the respondent as well as the application dated 12th December 2024. It is a follow up Ruling to the interim orders issued on 29th July 2025.
2. The respondent’s preliminary objection is premised on the assertion that the present suit mirrors the issues in HCCOMM E001 of 2024; Jean Andre Ilunga & 3 Others V Xico Trading Limited, which is currently pending before a court of concurrent jurisdiction. The respondent argues that the matters in dispute herein would be more appropriately adjudicated within the context of the said suit.
3. Learned Counsel Mr. Onyango and Mr. Langat made oral submissions both in support of and in opposition to the preliminary objection. I have also considered the written submissions filed by Mr. Onyango in support of the objection.
Analysis and Determination
4. Upon review of the pleadings and submissions, it is evident that the cause of action in this suit arises from the defendant’s alleged failure to return funds deposited by the plaintiff. The plaintiff, a Norwegian national and businessman, avers that he transferred a total of USD 403,097 into the defendant’s bank account to facilitate the purchase of shares, acquisition of property in Nairobi, and engagement in copper-related transactions. The plaintiff contends that none of these ventures materialized, and that the defendant, an advocate acting in a position of trust or agency, has failed to return the funds despite repeated demands. The plaintiff asserts that the retention of the funds is unjustified and amounts to a breach of fiduciary duty, negligence, and fraudulent misconduct.
5. The plaintiff alleges breach of trust and agency, negligence, and misconduct on the part of the defendant. He further claims that the defendant conspired to defraud him and failed to compensate him for the resulting loss. In the plaint dated 7th December 2024, the plaintiff seeks judgment for USD 403,097.00, interest on this amount at commercial rates from the due date until full payment, damages for breach of trust or agency, costs of the suit and further interest as the court deems fit.
6. The defendant on the other hand contends that this suit is sub judice due to the existence of HCCOMM E001 of 2024. However, the pleadings in HCCOMM E001/2024 were not availed to me to enable a substantive comparison and determination of whether the present suit ought to be struck out on that basis. In the interest of justice, clarity and finality on the issue, I took the liberty to peruse the same from the Court Tracking System (CTS). The plaint in HCCOMM E001/2024 involves parties who are not part of the present proceedings, namely: Jean Andre Ilunga, Joseph Marie Ntumba Kasongo, Alphonsine Ngalula, Group de Societe Miniera Shabunda, Blu Afrique Limited, and Xico Trading Limited. The plaintiff in the current suit is not a party to HCCOMM E001/2024.
7. From my reading, the dispute in HCCOMM E001/2024 pertains to an alleged breach of contract involving the sourcing, transportation, storage, and clearance of a gold consignment, with claims for demurrage charges amounting to USD 1,000,000. This is materially distinct from the present claim, which concerns the alleged failure to return deposited funds.
8. The doctrine of sub judice, as codified under Section 6 of the Civil Procedure Act, applies where a matter directly and substantially in issue is pending in another court of competent jurisdiction between the same parties. In this instance, the parties in HCCOMM E001 of 2024 are entirely distinct from those in the present suit. The plaintiff herein is not a party to the earlier suit, and the nature of the dispute, being a breach of contract involving gold consignment logistics and demurrage charges, is materially different from the present claim for refund of investment funds. The reliefs sought, factual matrices, and legal issues are not substantially similar. Accordingly, the sub judice objection fails both in fact and in law.
9. While this is my finding, I am nonetheless mindful of the potential for overlapping factual or transactional contexts between this suit and HCCOMM E001 of 2024. Both matters may touch on related commercial dealings or shared evidentiary material. To promote consistency in findings it may be prudent for both matters to be placed before a single judge for case management purposes. This I emphasize, would not compromise the independence of each suit but would ensure coherent handling of any intersecting issues that may arise during the course of proceedings.
The application dated 12th December 2024:
10. Following the Ruling of 29th July 2025 on interim injunction pending the hearing and determination of the application, the following prayers remain pending from this application:
i. That pending the hearing and determination of this suit this Honorable court be pleased to issue interim orders of injunction restraining, barring and or stopping the respondent by itself or through its agents or servants from using, utilizing, transferring, or in any other way expending and/or spending the USD 403,097.00
ii. That this Honorable court be pleased to order and compel the respondent to return the said funds to the applicant.
11. I have already pronounced myself in the Ruling of 29th July 2025 on the question of a prima facie case in the following terms:
“On the face of the pleadings, and upon considering the oral submissions made by counsel on 28th July 2025, it is not in dispute that a deposit of the said sum was made by the applicant into Bank Account No.01000028478 held at Stanbic Bank, Chiromo Branch. However, there is significant contestation as to the purpose of the deposit, the relationship between the parties, and the legal basis of the underlying transaction.
What emerges clearly is that there is more than meets the eye in this matter. The application raises complex and intertwined factual and legal issues that go to the root of the parties'' respective rights and obligations. It is only fair and just that the Court preserves the subject matter in the interim to ensure that the ultimate determination is not rendered nugatory.
In the circumstances, I am satisfied that the applicant has established a prima facie case warranting protection of the disputed funds. Any prejudice to the respondent (if at all) is outweighed by the risk of dissipation of funds and potential frustration of the Court’s processes if interim relief is denied.”
12. Applying the well-established principles in Giella V Cassman Brown & Co Ltd, [1973] EA 358, I am satisfied that the applicant has demonstrated a prima facie case with a probability of success. The risk of irreparable harm is manifest in the potential dissipation of the disputed funds, which would render any eventual judgment ineffectual. The balance of convenience tilts in favor of preserving the funds pending determination of the suit. Accordingly, prayer (4) for interim injunctive relief is granted. However, prayer (5) for immediate refund is premature and untenable at this stage, as it would amount to granting final relief before full adjudication of the merits.
Disposition
13. In light of the foregoing, the following final orders do hereby issue:
i. The preliminary objection is dismissed.
ii. Prayer (4) of the application dated 12th December 2024 is granted. The respondent is hereby restrained from utilizing, transferring, or otherwise dealing with the sum of USD 403,097 pending the hearing and determination of this suit.
iii. Prayer (5) for refund of the funds is declined at this stage.
iv. Costs shall be in the cause.
v. The matter shall be placed before the Presiding Judge of the Commercial and Tax Division for consideration of whether both suits may be administratively allocated to a single judge for coordinated management and determination, in the interest of judicial economy and consistency of outcomes.
'
1. This Ruling determines the Notice of Preliminary Objection raised by the respondent as well as the application dated 12th December 2024. It is a follow up Ruling to the interim orders issued on 29th July 2025.
2. The respondent’s preliminary objection is premised on the assertion that the present suit mirrors the issues in HCCOMM E001 of 2024; Jean Andre Ilunga & 3 Others V Xico Trading Limited, which is currently pending before a court of concurrent jurisdiction. The respondent argues that the matters in dispute herein would be more appropriately adjudicated within the context of the said suit.
3. Learned Counsel Mr. Onyango and Mr. Langat made oral submissions both in support of and in opposition to the preliminary objection. I have also considered the written submissions filed by Mr. Onyango in support of the objection.
Analysis and Determination
4. Upon review of the pleadings and submissions, it is evident that the cause of action in this suit arises from the defendant’s alleged failure to return funds deposited by the plaintiff. The plaintiff, a Norwegian national and businessman, avers that he transferred a total of USD 403,097 into the defendant’s bank account to facilitate the purchase of shares, acquisition of property in Nairobi, and engagement in copper-related transactions. The plaintiff contends that none of these ventures materialized, and that the defendant, an advocate acting in a position of trust or agency, has failed to return the funds despite repeated demands. The plaintiff asserts that the retention of the funds is unjustified and amounts to a breach of fiduciary duty, negligence, and fraudulent misconduct.
5. The plaintiff alleges breach of trust and agency, negligence, and misconduct on the part of the defendant. He further claims that the defendant conspired to defraud him and failed to compensate him for the resulting loss. In the plaint dated 7th December 2024, the plaintiff seeks judgment for USD 403,097.00, interest on this amount at commercial rates from the due date until full payment, damages for breach of trust or agency, costs of the suit and further interest as the court deems fit.
6. The defendant on the other hand contends that this suit is sub judice due to the existence of HCCOMM E001 of 2024. However, the pleadings in HCCOMM E001/2024 were not availed to me to enable a substantive comparison and determination of whether the present suit ought to be struck out on that basis. In the interest of justice, clarity and finality on the issue, I took the liberty to peruse the same from the Court Tracking System (CTS). The plaint in HCCOMM E001/2024 involves parties who are not part of the present proceedings, namely: Jean Andre Ilunga, Joseph Marie Ntumba Kasongo, Alphonsine Ngalula, Group de Societe Miniera Shabunda, Blu Afrique Limited, and Xico Trading Limited. The plaintiff in the current suit is not a party to HCCOMM E001/2024.
7. From my reading, the dispute in HCCOMM E001/2024 pertains to an alleged breach of contract involving the sourcing, transportation, storage, and clearance of a gold consignment, with claims for demurrage charges amounting to USD 1,000,000. This is materially distinct from the present claim, which concerns the alleged failure to return deposited funds.
8. The doctrine of sub judice, as codified under Section 6 of the Civil Procedure Act, applies where a matter directly and substantially in issue is pending in another court of competent jurisdiction between the same parties. In this instance, the parties in HCCOMM E001 of 2024 are entirely distinct from those in the present suit. The plaintiff herein is not a party to the earlier suit, and the nature of the dispute, being a breach of contract involving gold consignment logistics and demurrage charges, is materially different from the present claim for refund of investment funds. The reliefs sought, factual matrices, and legal issues are not substantially similar. Accordingly, the sub judice objection fails both in fact and in law.
9. While this is my finding, I am nonetheless mindful of the potential for overlapping factual or transactional contexts between this suit and HCCOMM E001 of 2024. Both matters may touch on related commercial dealings or shared evidentiary material. To promote consistency in findings it may be prudent for both matters to be placed before a single judge for case management purposes. This I emphasize, would not compromise the independence of each suit but would ensure coherent handling of any intersecting issues that may arise during the course of proceedings.
The application dated 12th December 2024:
10. Following the Ruling of 29th July 2025 on interim injunction pending the hearing and determination of the application, the following prayers remain pending from this application:
i. That pending the hearing and determination of this suit this Honorable court be pleased to issue interim orders of injunction restraining, barring and or stopping the respondent by itself or through its agents or servants from using, utilizing, transferring, or in any other way expending and/or spending the USD 403,097.00
ii. That this Honorable court be pleased to order and compel the respondent to return the said funds to the applicant.
11. I have already pronounced myself in the Ruling of 29th July 2025 on the question of a prima facie case in the following terms:
“On the face of the pleadings, and upon considering the oral submissions made by counsel on 28th July 2025, it is not in dispute that a deposit of the said sum was made by the applicant into Bank Account No.01000028478 held at Stanbic Bank, Chiromo Branch. However, there is significant contestation as to the purpose of the deposit, the relationship between the parties, and the legal basis of the underlying transaction.
What emerges clearly is that there is more than meets the eye in this matter. The application raises complex and intertwined factual and legal issues that go to the root of the parties'' respective rights and obligations. It is only fair and just that the Court preserves the subject matter in the interim to ensure that the ultimate determination is not rendered nugatory.
In the circumstances, I am satisfied that the applicant has established a prima facie case warranting protection of the disputed funds. Any prejudice to the respondent (if at all) is outweighed by the risk of dissipation of funds and potential frustration of the Court’s processes if interim relief is denied.”
12. Applying the well-established principles in Giella V Cassman Brown & Co Ltd, [1973] EA 358, I am satisfied that the applicant has demonstrated a prima facie case with a probability of success. The risk of irreparable harm is manifest in the potential dissipation of the disputed funds, which would render any eventual judgment ineffectual. The balance of convenience tilts in favor of preserving the funds pending determination of the suit. Accordingly, prayer (4) for interim injunctive relief is granted. However, prayer (5) for immediate refund is premature and untenable at this stage, as it would amount to granting final relief before full adjudication of the merits.
Disposition
13. In light of the foregoing, the following final orders do hereby issue:
i. The preliminary objection is dismissed.
ii. Prayer (4) of the application dated 12th December 2024 is granted. The respondent is hereby restrained from utilizing, transferring, or otherwise dealing with the sum of USD 403,097 pending the hearing and determination of this suit.
iii. Prayer (5) for refund of the funds is declined at this stage.
iv. Costs shall be in the cause.
v. The matter shall be placed before the Presiding Judge of the Commercial and Tax Division for consideration of whether both suits may be administratively allocated to a single judge for coordinated management and determination, in the interest of judicial economy and consistency of outcomes.
'