' Background and Introduction
1. This ruling determines the Preliminary Objection raised by the Defendant, Equity Bank Kenya Limited, dated 3rd October 2023. The objection seeks the dismissal of the Plaintiff’s suit on the grounds that it is sub judice, pursuant to Section 6 of the Civil Procedure Act.
2. The Bank contends that the Plaintiff’s suit is substantially similar to Nairobi High Court Commercial Suit No. 209 of 2019; Peter Mugambi Maina v. Equity Bank Kenya Limited, which is pending before this Court.
Analysis and Determination
3. 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.”
4. To invoke the doctrine of sub judice, there must be an earlier suit or proceeding that has already been filed and is active, the matter in issue in both suits must be directly and substantially the same, the parties in both suits must be the same, or litigating under the same title or interest and the previously instituted suit must be pending before a court that is competent to hear and determine the matter.
5. I have examined the pleadings in Nairobi High Court Commercial Suit No. 209 of 2019. It is undisputed that the Plaintiff in that suit is Peter Mugambi Maina (Mr. Maina), who is a director of the Plaintiff herein. The suit arises from credit facilities extended by the Bank to Quality Bitumen Products Limited and Welcap Works Limited. The facilities were secured by Mr. Maina through personal guarantees and charges over his properties. In that suit, Mr. Maina seeks amongst others, a permanent injunction restraining the Bank from exercising its statutory power of sale over the suit properties, a declaration that the Bank has willfully and recklessly mismanaged his account and an order for the Bank to render accounts for all his loans/borrowings. The present suit by Welcap Works Limited similarly challenges the Bank’s exercise of its statutory power of sale over the same properties, arising from the same facilities.
6. The Plaintiff also contends that the Preliminary Objection raises factual disputes, particularly regarding the directorship of Welcap Works Limited, and argues that such disputes necessitate the production of a CR12 form from the Registrar of Companies. On that basis, it is submitted that the objection falls short of the threshold for a pure point of law as required under the principles laid down in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. In my view, this argument is misplaced for two key reasons:
7. The CR12 is an official public record, which courts are entitled to take judicial notice of under the Evidence Act. The existence or content of a CR12 does not require oral evidence or cross-examination to be relied upon in determining a preliminary point of law especially since there is no contestation over its validity.
8. Secondly, and even if I was wrong on this, the doctrine of sub judice, as codified under Section 6 of the Civil Procedure Act, does not demand that the parties in both suits be identical in name or legal personality. It is sufficient that the parties are litigating under the same title or interest. This also is in response to the argument by the Plaintiff that it is a distinct legal entity from Mr. Maina, and that the suits are therefore not between the same parties. In this case, Mr. Maina, the Plaintiff in HCCOMM 209 of 2019, is a director and guarantor of the Plaintiff herein over the same credit facilities, secured by the same suit properties and challenging the same statutory power of sale by the Bank. Therefore, the argument that the Plaintiff herein is a separate juristic person from Mr. Maina does not defeat the objection.
9. The Plaintiff’s remedy lay in amending the earlier suit to incorporate any corporate claims, not in initiating parallel litigation. Allowing both suits to proceed would not only risk conflicting decisions on the same subject matter but would also undermine the principle of judicial economy. If every party to a singular transaction, be it a director, shareholder, guarantor, or corporate entity, were permitted to file separate suits over the same facilities, properties, and alleged breaches, the result would be a proliferation of litigation that clogs the judicial system. Courts would be forced to expend valuable time and resources adjudicating repetitive claims, analyzing overlapping facts, and issuing potentially divergent rulings on the same legal questions. The doctrine of sub judice exists precisely to prevent this fragmentation of litigation.
Disposition
10. In light of the foregoing, I find that the Preliminary Objection is merited. The suit offends the doctrine of sub judice and is an abuse of the court process. Accordingly,
i. The Plaintiff’s suit is therefore struck out in its entirety.
ii. The Plaintiff shall bear the costs of the suit and the Preliminary Objection.
It is so ordered.
'
1. This ruling determines the Preliminary Objection raised by the Defendant, Equity Bank Kenya Limited, dated 3rd October 2023. The objection seeks the dismissal of the Plaintiff’s suit on the grounds that it is sub judice, pursuant to Section 6 of the Civil Procedure Act.
2. The Bank contends that the Plaintiff’s suit is substantially similar to Nairobi High Court Commercial Suit No. 209 of 2019; Peter Mugambi Maina v. Equity Bank Kenya Limited, which is pending before this Court.
Analysis and Determination
3. 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.”
4. To invoke the doctrine of sub judice, there must be an earlier suit or proceeding that has already been filed and is active, the matter in issue in both suits must be directly and substantially the same, the parties in both suits must be the same, or litigating under the same title or interest and the previously instituted suit must be pending before a court that is competent to hear and determine the matter.
5. I have examined the pleadings in Nairobi High Court Commercial Suit No. 209 of 2019. It is undisputed that the Plaintiff in that suit is Peter Mugambi Maina (Mr. Maina), who is a director of the Plaintiff herein. The suit arises from credit facilities extended by the Bank to Quality Bitumen Products Limited and Welcap Works Limited. The facilities were secured by Mr. Maina through personal guarantees and charges over his properties. In that suit, Mr. Maina seeks amongst others, a permanent injunction restraining the Bank from exercising its statutory power of sale over the suit properties, a declaration that the Bank has willfully and recklessly mismanaged his account and an order for the Bank to render accounts for all his loans/borrowings. The present suit by Welcap Works Limited similarly challenges the Bank’s exercise of its statutory power of sale over the same properties, arising from the same facilities.
6. The Plaintiff also contends that the Preliminary Objection raises factual disputes, particularly regarding the directorship of Welcap Works Limited, and argues that such disputes necessitate the production of a CR12 form from the Registrar of Companies. On that basis, it is submitted that the objection falls short of the threshold for a pure point of law as required under the principles laid down in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. In my view, this argument is misplaced for two key reasons:
7. The CR12 is an official public record, which courts are entitled to take judicial notice of under the Evidence Act. The existence or content of a CR12 does not require oral evidence or cross-examination to be relied upon in determining a preliminary point of law especially since there is no contestation over its validity.
8. Secondly, and even if I was wrong on this, the doctrine of sub judice, as codified under Section 6 of the Civil Procedure Act, does not demand that the parties in both suits be identical in name or legal personality. It is sufficient that the parties are litigating under the same title or interest. This also is in response to the argument by the Plaintiff that it is a distinct legal entity from Mr. Maina, and that the suits are therefore not between the same parties. In this case, Mr. Maina, the Plaintiff in HCCOMM 209 of 2019, is a director and guarantor of the Plaintiff herein over the same credit facilities, secured by the same suit properties and challenging the same statutory power of sale by the Bank. Therefore, the argument that the Plaintiff herein is a separate juristic person from Mr. Maina does not defeat the objection.
9. The Plaintiff’s remedy lay in amending the earlier suit to incorporate any corporate claims, not in initiating parallel litigation. Allowing both suits to proceed would not only risk conflicting decisions on the same subject matter but would also undermine the principle of judicial economy. If every party to a singular transaction, be it a director, shareholder, guarantor, or corporate entity, were permitted to file separate suits over the same facilities, properties, and alleged breaches, the result would be a proliferation of litigation that clogs the judicial system. Courts would be forced to expend valuable time and resources adjudicating repetitive claims, analyzing overlapping facts, and issuing potentially divergent rulings on the same legal questions. The doctrine of sub judice exists precisely to prevent this fragmentation of litigation.
Disposition
10. In light of the foregoing, I find that the Preliminary Objection is merited. The suit offends the doctrine of sub judice and is an abuse of the court process. Accordingly,
i. The Plaintiff’s suit is therefore struck out in its entirety.
ii. The Plaintiff shall bear the costs of the suit and the Preliminary Objection.
It is so ordered.
'