[NOTICES OF MOTION DATED 8TH JULY 2025 & 16TH SEPTEMBER 2025]
1. The plaintiff filed the notice of motion dated 8th July 2025 seeking orders for inter that:
a. Pending the hearing and determination of this suit, an injunction be issued restraining the defendant from evicting and or dispossessing the plaintiff from Mombasa/Block XX/184 & 185, the suit properties, or restricting the plaintiff on the use, access and occupation or in any other way interfering with the plaintiff’s and its tenants use and enjoyment of the suit properties, including by terminating the lease dated 9th March 1946; and
b. The defendant be ordered to provide the account details for the purposes of the payment of rent.
The application is based on the twelve (12) grounds on its face and supported by the affidavit of Karim A. Chakera, one of the trustees to the plaintiff, sworn on the 8th July 2025, inter alia deposing that the plaintiff is the lessee for the suit properties registered in the name of Seif Said Al-Busaidy as trustee of Sif Bin Salim Trust, under an indenture dated 9th March 1946 for 99 years commencing fom 1st January 1946; that on the suit properties is a building known as Abhani Building, which houses various tenants; that the plaintiff has enjoyed quiet possession until the defendant issued them with a notice of forfeiture of lease dated 24th May 2024, alleging failure to pay rent for over six years, and requiring they vacate after the lapse of six months; that they requested the defendant to provide them with account details for payment of rent to remedy the alleged default but the defendant has declined to do so and hence this application.
2. The defendant opposed the application through the grounds of opposition dated 21st October 2025 that more or less mirrors the grounds and deposition on their application dated 16th September 2025 that are dealt with at length in (3) below.
3. The defendant filed the notice of motion dated 16th September 2025, seeking for inter alia, the striking out and or staying of the suit for reasons that it is res judicata, sub judice and an abuse of court process for this court had struck out a similar suit and application in ELCLC No. E098 of 2024, on 11th June 2024. The application is premised on the ten(10) grounds on its face and supporting affidavit of Saif Said Saif Al-Busaidy, trustee of 1st defendant, sworn on 16th September 2025, in which he inter alia deposed that the plaintiff had sued over the same suit properties in ELCLC No. E081 of 2024 that mirrors this instant suit, but it was struck out on 11th June 2024 pursuant to their application; that the plaintiff on 20th June 2025 lodged a notice of appeal dated 11th June 2024; that this suit offends sections 6 & 7 of the Civil Procedure Act and Order 2 Rule 15(1)(b) to (d) of Civil Procedure Rules and should be struck out with costs, or stayed pending the determination of the plaintiff’s intended appeal.
4. The application is opposed by the plaintiff through grounds of opposition and replying affidavit of Karim Chakera sworn on 1st October 2025, inter alia deposing that the previous suit was not determined on merit but was struck out on the basis the defendants were deceased; that the issues raised by the plaintiff on the validity of the forfeiture notice was not determined; that no further steps were taken after filing the notice of appeal on the ruling of 11th June 2024, and there is therefore no pending appeal, or any other proceeding and the application should be dismissed with costs.
5. The learned counsel for the plaintiff and defendant filed their submissions both dated the 21st October 2025, that the court has considered.
6. The main issues arising from the two applications for the court’s determinations are as follows:
a. Whether the plaintiff’s suit and application are res judicata and or sub judice.
b. Whether the plaintiff has met the threshold for the injunctive and accounts orders sought to be granted.
c. Who pays the costs?
7. The court has carefully considered the grounds on the two applications, the affidavit evidence, submissions by the learned counsel, superior court decisions cited thereon and come to the following conclusions:
a. A perusal of the ruling delivered by the court on 22th June 2024, in ELCLC No. E098 of 2024, clearly show that though the plaintiff in that suit are the same as the plaintiff herein, the defendants are different. The defendants in the previous suit were Said Bin Seif, Ali Bin Mohamed & Mohamed Said as trustees of wakf, and it was struck out for primarily being a suit filed against deceased defendants.
b. Res judicata is codified under section 7 of the Civil Procedure Act chapter 21 of Laws of Kenya that provides that:
“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.”
The plaintiff’s injunction application filed in ELCLC No. E098 of 2024, was not heard or determined on merit, but fell by the way upon the court finding merit in the defendant’s application to strike out. The defendant in the current suit and application are different from those in the previous suit. Therefore, the issues raised in the plaintiff’s application herein are therefore not res judicata.
c. Section 6 of the Civil Procedure Act 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.”
The defendant herein has taken the position that this suit is sub judice to ELCLC No. E098 of 2024, in respect of which a Notice of Appeal was filed. In response the plaintiff herein have submitted that the said Notice of Appeal does not amount to an appeal, but should be taken as withdrawn for reasons inter alia that no memorandum of appeal or record of appeal has been filed by payment of the requisite fees. The learned counsel relied on the cases of HA versus LB [2022] KEHC 2886 (KLR), Yani Haryanto versus E.D & F. Man. (Sugar) Limited CACA No. 122 of 1992 (UR) and Mae Properties Limited versus Joseph Kibe & Another [2017] KECA 238 (KLR). I have not seen any rebuttal to this position and I agree with the plaintiff’s position that as ELCLC No. E098 of 2024, was stuck out on 11th June 2024, and there being no valid appeal pending over that decision, there is no evidence of any other suit pending before this court or any other court of competent jurisdiction over the same issues and parties like in this suit. The ground of sub judice therefore fails, and I see no evidence to suggest that the application by the plaintiff is an abuse of court process.
d. That as plaintiff’s injunction application in ELCLC No. E098 of 2024, previous suit, was not determined after a merit hearing, the plaintiff is not precluded or estopped from approaching the court in a fresh suit, subject to other factors like limitation, which has not been raised in this instance. The defendant application dated 16th September 2025 therefore fails.
e. There is no question raised on the plaintiff’s capacity to file this suit and the application. The plaintiff’s depositions through the supporting affidavit have not been rebutted and in view of the fact that the plaintiff has been the lessee of the suit properties that are owned by the defendant, and it being apparent that the parties have a dispute on the alleged termination of the lease and rent arrears, and considering the commercial developments on the suit properties that are sub-let to other users, I find the plaintiff has not only established a prima facie with a probability of success, but has shown they are likely to suffer irreparable loss if the injunction orders is not granted. The balance of convenience also tilts towards granting the injunction order to be in force as the suit is heard and determined.
f. On the prayer for defendant to be ordered to provide the account details for the purposes of the payment of rent, should however wait for the main suit to be heard as I notice it is also appearing as prayer (4) in the plaint dated 8th July 2025. The parties are however at liberty to discuss the issue and if agreeable exchange the required details.
g. Under section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya, costs follow the event unless where the court directs differently. In this case, I find it fair and just to order that costs in both applications to abide the outcome of the main suit.
8. Having come to the foregoing conclusions on the applications dated 8th July 2025 and 16th September 2025, the court finds and orders as follows:
a. That the defendant’s notice of motion dated 16th September 2025, is without merit and is dismissed.
b. That the plaintiff’s notice of motion dated the 8th July 2025 has merit and the injunction order sought in prayer (4) is granted.
c. The costs in the two applications to abide the outcome of the main suit.
It is so ordered.
1. The plaintiff filed the notice of motion dated 8th July 2025 seeking orders for inter that:
a. Pending the hearing and determination of this suit, an injunction be issued restraining the defendant from evicting and or dispossessing the plaintiff from Mombasa/Block XX/184 & 185, the suit properties, or restricting the plaintiff on the use, access and occupation or in any other way interfering with the plaintiff’s and its tenants use and enjoyment of the suit properties, including by terminating the lease dated 9th March 1946; and
b. The defendant be ordered to provide the account details for the purposes of the payment of rent.
The application is based on the twelve (12) grounds on its face and supported by the affidavit of Karim A. Chakera, one of the trustees to the plaintiff, sworn on the 8th July 2025, inter alia deposing that the plaintiff is the lessee for the suit properties registered in the name of Seif Said Al-Busaidy as trustee of Sif Bin Salim Trust, under an indenture dated 9th March 1946 for 99 years commencing fom 1st January 1946; that on the suit properties is a building known as Abhani Building, which houses various tenants; that the plaintiff has enjoyed quiet possession until the defendant issued them with a notice of forfeiture of lease dated 24th May 2024, alleging failure to pay rent for over six years, and requiring they vacate after the lapse of six months; that they requested the defendant to provide them with account details for payment of rent to remedy the alleged default but the defendant has declined to do so and hence this application.
2. The defendant opposed the application through the grounds of opposition dated 21st October 2025 that more or less mirrors the grounds and deposition on their application dated 16th September 2025 that are dealt with at length in (3) below.
3. The defendant filed the notice of motion dated 16th September 2025, seeking for inter alia, the striking out and or staying of the suit for reasons that it is res judicata, sub judice and an abuse of court process for this court had struck out a similar suit and application in ELCLC No. E098 of 2024, on 11th June 2024. The application is premised on the ten(10) grounds on its face and supporting affidavit of Saif Said Saif Al-Busaidy, trustee of 1st defendant, sworn on 16th September 2025, in which he inter alia deposed that the plaintiff had sued over the same suit properties in ELCLC No. E081 of 2024 that mirrors this instant suit, but it was struck out on 11th June 2024 pursuant to their application; that the plaintiff on 20th June 2025 lodged a notice of appeal dated 11th June 2024; that this suit offends sections 6 & 7 of the Civil Procedure Act and Order 2 Rule 15(1)(b) to (d) of Civil Procedure Rules and should be struck out with costs, or stayed pending the determination of the plaintiff’s intended appeal.
4. The application is opposed by the plaintiff through grounds of opposition and replying affidavit of Karim Chakera sworn on 1st October 2025, inter alia deposing that the previous suit was not determined on merit but was struck out on the basis the defendants were deceased; that the issues raised by the plaintiff on the validity of the forfeiture notice was not determined; that no further steps were taken after filing the notice of appeal on the ruling of 11th June 2024, and there is therefore no pending appeal, or any other proceeding and the application should be dismissed with costs.
5. The learned counsel for the plaintiff and defendant filed their submissions both dated the 21st October 2025, that the court has considered.
6. The main issues arising from the two applications for the court’s determinations are as follows:
a. Whether the plaintiff’s suit and application are res judicata and or sub judice.
b. Whether the plaintiff has met the threshold for the injunctive and accounts orders sought to be granted.
c. Who pays the costs?
7. The court has carefully considered the grounds on the two applications, the affidavit evidence, submissions by the learned counsel, superior court decisions cited thereon and come to the following conclusions:
a. A perusal of the ruling delivered by the court on 22th June 2024, in ELCLC No. E098 of 2024, clearly show that though the plaintiff in that suit are the same as the plaintiff herein, the defendants are different. The defendants in the previous suit were Said Bin Seif, Ali Bin Mohamed & Mohamed Said as trustees of wakf, and it was struck out for primarily being a suit filed against deceased defendants.
b. Res judicata is codified under section 7 of the Civil Procedure Act chapter 21 of Laws of Kenya that provides that:
“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.”
The plaintiff’s injunction application filed in ELCLC No. E098 of 2024, was not heard or determined on merit, but fell by the way upon the court finding merit in the defendant’s application to strike out. The defendant in the current suit and application are different from those in the previous suit. Therefore, the issues raised in the plaintiff’s application herein are therefore not res judicata.
c. Section 6 of the Civil Procedure Act 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.”
The defendant herein has taken the position that this suit is sub judice to ELCLC No. E098 of 2024, in respect of which a Notice of Appeal was filed. In response the plaintiff herein have submitted that the said Notice of Appeal does not amount to an appeal, but should be taken as withdrawn for reasons inter alia that no memorandum of appeal or record of appeal has been filed by payment of the requisite fees. The learned counsel relied on the cases of HA versus LB [2022] KEHC 2886 (KLR), Yani Haryanto versus E.D & F. Man. (Sugar) Limited CACA No. 122 of 1992 (UR) and Mae Properties Limited versus Joseph Kibe & Another [2017] KECA 238 (KLR). I have not seen any rebuttal to this position and I agree with the plaintiff’s position that as ELCLC No. E098 of 2024, was stuck out on 11th June 2024, and there being no valid appeal pending over that decision, there is no evidence of any other suit pending before this court or any other court of competent jurisdiction over the same issues and parties like in this suit. The ground of sub judice therefore fails, and I see no evidence to suggest that the application by the plaintiff is an abuse of court process.
d. That as plaintiff’s injunction application in ELCLC No. E098 of 2024, previous suit, was not determined after a merit hearing, the plaintiff is not precluded or estopped from approaching the court in a fresh suit, subject to other factors like limitation, which has not been raised in this instance. The defendant application dated 16th September 2025 therefore fails.
e. There is no question raised on the plaintiff’s capacity to file this suit and the application. The plaintiff’s depositions through the supporting affidavit have not been rebutted and in view of the fact that the plaintiff has been the lessee of the suit properties that are owned by the defendant, and it being apparent that the parties have a dispute on the alleged termination of the lease and rent arrears, and considering the commercial developments on the suit properties that are sub-let to other users, I find the plaintiff has not only established a prima facie with a probability of success, but has shown they are likely to suffer irreparable loss if the injunction orders is not granted. The balance of convenience also tilts towards granting the injunction order to be in force as the suit is heard and determined.
f. On the prayer for defendant to be ordered to provide the account details for the purposes of the payment of rent, should however wait for the main suit to be heard as I notice it is also appearing as prayer (4) in the plaint dated 8th July 2025. The parties are however at liberty to discuss the issue and if agreeable exchange the required details.
g. Under section 27 of the Civil Procedure Act chapter 21 of Laws of Kenya, costs follow the event unless where the court directs differently. In this case, I find it fair and just to order that costs in both applications to abide the outcome of the main suit.
8. Having come to the foregoing conclusions on the applications dated 8th July 2025 and 16th September 2025, the court finds and orders as follows:
a. That the defendant’s notice of motion dated 16th September 2025, is without merit and is dismissed.
b. That the plaintiff’s notice of motion dated the 8th July 2025 has merit and the injunction order sought in prayer (4) is granted.
c. The costs in the two applications to abide the outcome of the main suit.
It is so ordered.