Salat v Kanuli Information Technology Solutions Limited & 4 others (Environment and Land Case E045 of 2025) [2026] KEELC 3098 (KLR)

3. That the suit is barred by statutory and equitable principles, including: (a) the protection of the 5th Defendant as an innocent purchaser for value under section 99 of the Land Act, 2012, limiting the Plaintifi to damages; (b) issue estoppel barring relitigation of notices, balances and valuation determined in prior; and (c) laches due to the Plaintifi's inordinate delay of over seven months since the sale on 27 February 2025, prejudicing the Defendants. (sic) 4. That in the premises (sic), the suit and application be struck out or dismissed with costs to the 2nd Defendant. Factual Background. 2. The Plaintifi commenced the present proceedings vide the Plaint dated 20th September, 2025 where he seeks the following prayers; a. A declaration that the 2nd Defendant acted unlawfully and in breach of the charge when it demanded repayment of the borrower’s entire indebtedness of Kshs. 32,998.454.42 from the Plaintifi who had only guaranteed the limited sum of Kshs. 5,600,000. b. A declaration that the sale and transfer of the suit property L.R. NO. Kericho/Chepsir/S.S 311 to the 5th Defendant was unlawful, irregular, null and void. c. A declaration that the purported sale of L.R. No. Kericho/Chepsir/S.S 311 at the grossly undervalued price of Kshs. 13,000,000 against its true open market value of Kshs. 32,500,000 was unlawful, fraudulent, and null and void. d. A declaration that the Plaintifi's liability as guarantor was strictly limited to Kshs. 5,600,000 as per the charge instrument and that the 2nd Defendant acted unlawfully in seeking to recover sums beyond that amount from the Plaintifi's property. e. An order declaring that the Plaintifi be discharged from liability for any sums exceeding the guaranteed amount of Kshs. 5,600,000. f. An order directing the Chief Land Registrar to cancel the title issued to the 5th Defendant and to restore the suit property in (sic) the Plaintifi's name. g. In the alternative to (f) above and without prejudice to the foregoing, an award of Special damages in the sum of Kshs. 26,900,000 being the value of the property at 32,500,000 less the guaranteed sum of Kshs. 5,600,000. (sic) h. General damages for unlawful deprivation of property, inconvenience, and breach of duty. i. Costs of this suit. j. Interest on g) and h) above at Court rates from the date of filing suit until payment in full. k. Any other relief that this Honourable Court may deem just and-expedient to grant. 3. The 2nd Defendant filed a Statement of Defence dated 15th October, 2025 where it denies the averments in the Plaint and seeks that the Plaintifi’s suit be dismissed with costs. 4. As at the time of writing of this ruling, the 1st, 3rd, 4th and 5th Defendants have not filed their Statements of Defence. 5. On 10th February, 2026, the Court issued directions that the Preliminary Objection be canvassed by way of written submissions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3098/eng@2026-05-21 2

page 2 of 14

6. The matter was mentioned on 11th March, 2026 to confirm filing of submissions and then reserved for ruling. Issues for Determination. 7. The 2nd Defendant filed submissions on 13th February, 2026, the 5th Defendant filed submissions on 10th March, 2026 while the Plaintifi filed his submissions on 18th November, 2025. The 2nd Defendant’s Submissions. 8. The 2nd Defendant submits that on or about 10th November, 2015, the 1st Defendant applied for and obtained a loan facility of Kshs. 11,200,000/= from it. 9. The 2nd Defendant also submits that at the request of the 4th Defendant who also serves as the Director of the 1st Defendant, the Plaintifi agreed to guarantee part of the loan facility. 10. The 2nd Defendant further submits that the Plaintifi ofiered his parcel of land No. Kericho/Chepsir/ S.S/311 as security for the loan. 11. It is the 2nd Defendant’s submissions that on 1st December, 2015, a charge was executed as security for Kshs. 5,600,000/=. 12. It is also the 2nd Defendant’s submissions that the 1st Defendant defaulted in its loan obligations and it therefore took steps to exercise its statutory power of sale over the charged property. 13. It is further the 2nd Defendant’s submissions that the Plaintifi challenged the said process by filing multiple suits. 14. The 2nd Defendant submits that the Plaintifi filed Kericho HC Case No. 5 of 2018 where he sought orders to stop the sale. He goes on to state that the said suit was dismissed for want of prosecution on 20th May, 2024. 15. The 2nd Defendant also submits that the Plaintifi thereafter filed Kericho HC Case No. E011 of 2024 and sought for injunctive orders to stop the sale. 16. The 2nd Defendant further submits that the Court delivered a ruling in the said suit on 5th December, 2024 and made substantive findings on the core issues the Plaintifi now seeks to litigate on. 17. It is the 2nd Defendant’s submissions that upon dismissal of the said application, it proceeded to exercise its statutory power of sale. 18. It is also the 2nd Defendant’s submissions that the suit property was sold at a public auction on 27th February, 2025. 19. It is further the 2nd Defendant’s submissions that the auction was conducted by the 3rd Defendant and the 5th Defendant emerged as the successful bidder. 20. The 2nd Defendant submits that the 5th Defendant paid Kshs. 13,000,000/= and the land was transferred and registered in his name. 21. The 2nd Defendant also submits that the present suit was filed on 20th September, 2025 which was seven months after the sale of the suit parcel of land. 22. The 2nd Defendant further submits that the Preliminary objection is premised on two grounds. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3098/eng@2026-05-21 3

page 3 of 14

23. It is the 2nd Defendant’s submissions that the first ground is whether the present suit is an abuse of the Court process as the core issues raised herein were determined in Kericho Civil Case No. E011 of 2024. 24. It is also the 2nd Defendant’s submissions that the second ground is whether this Court has jurisdiction to hear and determine the suit as the predominant dispute is commercial in nature. 25. The 2nd Defendant relies on the judicial decision of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969] EA 696 and submits that a preliminary objection should raise a pure point of law. 26. On the first issue, the 2nd Defendant relies on the judicial decision of Muchanga Investments Ltd vs Safaris Unlimited (Africa) Ltd and 2 Others [2009] KECA 453 (KLR) and submits that the Court held that abuse of the Court process encompasses improper use of judicial procedures for collateral purposes, frivolous and vexatious conduct. 27. It is the 2nd Defendant’s submissions that issue estoppel prevents relitigating of specific issues especially where they were already decided in proceedings that were filed earlier. 28. It is also the 2nd Defendant’s submissions that unlike cause of action estoppel, which bars the filing of a fresh suit, issue estoppel bars relitigating of particular issues even where the subsequent suit advances a difierent cause of action. 29. It is further the 2nd Defendant’s submissions that the issue estoppel doctrine promotes finality and prevents confiicting judicial pronouncements. 30. The 2nd Defendant submits that the said doctrine applies even in instances where the earlier determination was interlocutory in nature provided that the issue was directly decided and the decision necessary for the outcome. 31. The 2nd Defendant relies on the judicial decision of Eliud Michael Sichei vs Tuti Holdings Limited Company [2021] KEELC 2597 (KLR) in support of its submissions. 32. The 2nd Defendant also submits that in Kericho HC Case No. E011 of 2024, the Court examined the nature and scope of the charge instrument and found that it secured the full indebtedness of the principal debtor not merely the guaranteed amount of Kshs. 5,600,000/=. 33. The 2nd Defendant further submits that the Court also found that it followed due process in issuing the statutory notices. 34. It is the 2nd Defendant’s submissions that it was the finding of the Court, that the Plaintifi was in default and that he had not taken steps to remedy the default, therefore its right to exercise its statutory power of sale had accrued. 35. It is also the 2nd Defendant’s submissions that the Plaintifi did not file an appeal from the determination of the Court in Kericho HC Case No. E011 of 2024 and he instead pleaded the same issues before this Court. 36. It is further the 2nd Defendant’s submissions that the issues raised before this Court and which issues were addressed on their merits in Kericho HC Case No. E011 of 2024 are; a. Whether the charge covers only Kshs. 5,600,000/= or the full debt. b. Whether the Bank was entitled to demand Kshs. 32,900,000/= c. Whether the notices that were issued were valid. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3098/eng@2026-05-21 4

page 4 of 14

d. Whether the Plaintifi was in default. e. Whether the Bank was in default. 37. The 2nd Defendant submits that the Court in Kericho HC Case No. E011 of 2024 found in the afirmative in all the said issues. 38. The 2nd Defendant also submits that the Plaintifi is relitigating on the same issues and the claims now advanced regarding alleged undervaluation and failure to remit surplus monies are derivative of the foundational issues. 39. The 2nd Defendant further submits that valuation is a precondition of sale and the Court in Kericho HC Case No. E011 of 2024 already found that its power of sale had already accrued. 40. It is the 2nd Defendant’s submissions that it therefore follows that valuation was done in accordance with Section 97 of the Land Act. 41. On the second issue, the 2nd Defendant relies on Article 162 (2)(b) of the Constitution of Kenya, Section 13 of the Environment and Land Court Act, the judicial decisions of Co-operative Bank of Kenya Limited vs Patrick Kangethe Njuguna and 5 Others [2017] KECA 79 (KLR), Bank of Africa Ltd and another vs TSS Investment Ltd and 2 Others [2024] KECA 410 (KLR) and submits that the Court of Appeal made the finding that the Environment and Land Court’s jurisdiction is only limited to disputes connected to use of land and contracts incidental to such use. 42. It is the 2nd Defendant’s submissions that a charge has no direct contractual relation to use of land and enforcement of a charge through the exercise of a statutory power of sale is a commercial issue. 43. It is also the 2nd Defendant’s submissions that this Court is bound by the aforementioned judicial decisions as they were made by the Court of Appeal. 44. It is further the 2nd Defendant’s submissions that the predominant purpose test guides jurisdictional analysis. 45. The 2nd Defendant submits that the Court must identify the dominant issue and determine whether it relates to the environment, use, title or occupation of land. 46. The 2nd Defendant also submits that in the Plaint, the Plaintifi contends that it demanded an excessive sum of Kshs. 32,000,000/= and yet the liability was limited to Kshs. 5,600,000/=. 47. The 2nd Defendant further submits that the Plaintifi also contends that there was failure to provide proper accounts, that there were improper statutory notices, that the suit parcel of land was sold at an undervalue and that there was a failure to remit the surplus. 48. It is the 2nd Defendant’s submissions that the said issues are commercial in nature and are beyond the scope of the jurisdiction of the Environment and Land Court. 49. It is also the 2nd Defendant’s submissions that prayer (f) in the Plaint which seeks cancellation of title is derivative as it is dependent on the Court making a finding that it (2nd Defendant) did not properly exercise its statutory power of sale. 50. It is further the 2nd Defendant’s submissions that the predominant dispute before this Court is with regard to exercise of its statutory power of sale which issue should be determined by the Commercial Division of the High Court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3098/eng@2026-05-21 5

page 5 of 14

51. The 2nd Defendant submits that it will be prejudiced if the Court allows this suit to proceed as the issues raised herein have already been determined in Kericho HC Case No. E011 of 2024. 52. The 2nd Defendant also submits that equity aids the vigilant and not the indolent. 53. The 2nd Defendant further submits that the Plaintifi has had multiple opportunities to vindicate his rights given the numerous suits he has filed. 54. It is the 2nd Defendant’s submissions that at no point did the Plaintifi pay what was due under the loan and guarantee arrangements. 55. It is also the 2nd Defendant’s submissions that he who seeks equity must do equity and the Plaintifi cannot seek that his title be restored while concealing an adverse ruling and misrepresenting the litigation history. 56. It is further the 2nd Defendant’s submissions that the Plaintifi’s conduct demonstrates his intention to frustrate it. 57. The 2nd Defendant concludes its submissions by urging the Court to allow its preliminary objection with costs. The Plaintifi ’s Submissions. 58. The Plaintifi submits on whether the Preliminary Objection dated 15th October, 2025 has merit. 59. The Plaintifi relies on the judicial decisions of Odinga vs Independent Electoral & Boundaries Commission & 3 Others [2013] KESC 8 (KLR), Oraro vs Mbaja [2005] KEHC 3182 (KLR) and submits that the 2nd Defendant’s Preliminary Objection raises factual issues which are beyond the scope of a Preliminary Objection. 60. The Plaintifi also submits that the cause of action in Kericho HC Case No. E011 of 2024 was separate and distinct as it involved the prospective sale of the suit parcel of land. 61. The Plaintifi further submits that the cause of action in the present suit is premised on the actual sale of the suit parcel of land. 62. It is the Plaintifi’s submissions that Kericho HC Case No. 5 of 2018 was dismissed for want of prosecution and it was not determined on its substantive merits. 63. It is also the Plaintifi’s submissions that it is therefore erroneous for the present suit to be characterized as a relitigation of already determined issues. 64. It is further the Plaintifi’s submissions that the present suit arises from the actual sale of the suit parcel of land which occurred after the previous proceedings were instituted. 65. The Plaintifi submits that he has acted in good faith and he is seeking to protect his proprietary interests in the suit parcel of land to prevent further dispossession. 66. The Plaintifi also submits that he is seeking justice and the suit is neither frivolous, vexatious or an attempt to litigate previously determined issues. 67. The Plaintifi further submits that the predominant issue in the present suit is the illegal sale of the suit parcel of land under a registered charge and not the commercial enforcement of the charge. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3098/eng@2026-05-21 6

page 6 of 14

68. The Plaintifi relies on Section 13 of the Environment and Land Court Act, the judicial decision of Joseph Kaimenyi Marete vs Pitchcare Marketing Division & 2 Others [2022] KEELC 1956 (KLR) and submits that his parcel of land was undervalued and sold. 69. It is the Plaintifi’s submissions that there is an imminent resale of the suit parcel of land which is a dispute relating to ownership and disposition of land that falls under the jurisdiction of this Court. 70. It is also the Plaintifi’s submissions, that it is not disputed that he executed a deed of guarantee in favour of the 1st Defendant. 71. It is further the Plaintifi’s submissions that it is also not disputed that a charge was registered on the suit parcel of land. 72. The Plaintifi reiterates that the predominant issue is the undervaluation of the suit parcel of land which issue does not fall under the jurisdiction of the Commercial Division of the High Court. 73. It is the Plaintifi’s submissions that the third ground of the 2nd Defendant’s Preliminary Objection is misguided and reiterates that the sale of the suit parcel of land was illegal and irregular as the suit parcel of land was undervalued. 74. It is also the Plaintifi’s submissions that determination on whether or not the 5th Defendant is an innocent purchaser for value requires a factual inquiry which cannot be undertaken at this preliminary stage. 75. The Plaintifi concludes his submissions by urging the Court to dismiss the 2nd Defendant’s Preliminary Objection. 5th Defendant’s Submissions. 76. The 5th Defendant submits on the following issues; a. Whether the 2nd Defendant’s Preliminary Objection dated 15th October, 2025 raises pure points of law. b. Whether this Honourable Court lacks jurisdiction, the dispute as pleaded relating in substance to the exercise of a statutory power of sale (sic) c. Whether the present suit is sub judice in view of High Court Civil Case No. E011 of 2024. 77. On the first issue, the 5th Defendant relies on the judicial decision of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969] EA 696, Oraro vs Mbaja [2005] KEHC 3182 (KLR) and submits that a preliminary objection should raise pure points of law. 78. The 5th Defendant relies on Section 6 of the Civil Procedure Act, the judicial decisions of Chumo (Suing as Legal Representative of the Estate of the late Kipsigei Arap Cheplel alias Elijah Kipsigei Cheplei) vs Chumo (Environment & Land Case E005 of 2023) [2025] KEELC 474, Cherogoe & another vs Engen Kenya Limited & another (citation not given) and submits that the issue of sub judice is a pure point of law. 79. It is the 5th Defendant’s submissions that the issue of jurisdiction is also a pure point of law and the 2nd Defendant’s preliminary objection does not therefore call for the ascertainment of contested issues of fact. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3098/eng@2026-05-21 7

page 7 of 14

80. The 5th Defendant relies on the judicial decision of Hassan Nyanje Charo vs Khatib Mwashetani & 3 Others [2014] eKLR and submits that the Court should not be astute to collapse the distinction between a merits contest and a jurisdictional objection. 81. On the second issue, the 5th Defendant relies on Article 162 (2)(b) of the Constitution of Kenya, Section 13 of the Environment and Land Court Act, the judicial decision of Owners of Motor Vessel “Lilian S” vs Caltex Oil (Kenya) Ltd (citation not given), Bank of Africa Kenya Limited & another vs TSS Invetsment Limited & 2 others (citation not given), Co-operative Bank of Kenya Limited vs Patrick Kangethe Njuguna & 5 Others (citation not given) and submits that the pleaded issues in the present suit are on; a. Exercise of statutory power of sale. b. Validity or suficiency of statutory notices. c. The default in repayment of the loan. d. Valuation and the consequences of the sale process. 82. It is the 5th Defendant’s submissions that the issues as pleaded in the Plaint demonstrate that the dispute in substance raises issues on enforcement of the charge which dispute is commercial in nature. 83. It is also the 5th Defendant’s submissions that the dominant issue in the present proceedings is on the lawfulness of the Chargee’s exercise of statutory power of sale which issue cannot be determined by the Environment and Land Court. 84. It is further the 5th Defendant’s submissions that this Court does not therefore have jurisdiction to hear and determine the suit. 85. On the third issue, the 5th Defendant relies on Section 6 of the Civil Procedure Act, the judicial decision of Kenya National Commission on Human Rights vs Attorney General; Independent Electoral & Boundaries Commission & 16 Others (Interested Parties) (citation not given) and submits that the issues raised herein were determined in Kericho HC Case No. E011 of 2024. 86. The 5th Defendant submits that the Plaintifi herein filed Kericho HC Case No. E011 of 2024 and while relying on Sections 90(3) and 96 of the Land Act, sought that the sale of the suit parcel of land be stopped. 87. The 5th Defendant also submits that the Court delivered a ruling on 5th December, 2024 and dismissed the said application. 88. The 5th Defendant further submits that even though the dismissal of the interlocutory application did not conclude the substantive suit, it follows that the earlier suit constitutes previously instituted proceedings for purposes of Section 6 of the Civil Procedure Act. 89. The 5th Defendant relies on the judicial decision of Republic vs Paul Kihara Kariuki, Attorney General & 2 Others Ex parte Law Society of Kenya (citation not given) and submits that the Court in Kericho HC Case No. E011 of 2024 found that the Plaintifi defaulted in the repayment of the loan and the 2nd Defendant’s right to exercise its statutory power of sale had accrued. 90. It is the 5th Defendant’s submissions that the same issues have been raised before this Court. 91. It is also the 5th Defendant’s submissions that the Court should not therefore entertain this suit merely because the sale has been completed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3098/eng@2026-05-21 8

page 8 of 14

92. It is further the 5th Defendant’s submissions that the latter developments do not sever the dispute from its legal source as they remain incidents arising from the enforcement of the same charge. 93. The 5th Defendant submits that the present suit is sub judice and therefore the Preliminary Objection should be upheld and the suit struck out. Analysis and Determination. 94. I have considered the 2nd Defendant’s Preliminary Objection and the rival submissions. It is my view that the following issues arise for determination; a. Whether this Court has jurisdiction to hear and determine the suit. b. Whether the present suit is an abuse of the Court process. c. Whether the present suit is barred by statutory and equitable principles. d. Who should bear costs of the Preliminary Objection. A. Whether this Court has jurisdiction to hear and determine the suit. 95. This issue addresses Ground (2) of the 2nd Defendant’s Preliminary Objection. 96. The judicial decision of Ushago Diani Investment Limited v Abdulwahab (Environment & Land Case 12 of 2023) [2023] KEELC 20213 (KLR) (27 September 2023) (Ruling) cited with approval Oraro v Mbaja [2005] eKLR 141 where the Court, on the nature of preliminary objections, held as follows; “ A preliminary objection is now well identified as and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection and yet it bears factual aspects calling for proof or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true preliminary objection which the Court should allow to proceed. Where a Court needs to investigate facts, a matter cannot be raised as a preliminary objection anything that purports to be a preliminary objection must not deal with disputed facts and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.” (Emphasis mine) 97. A preliminary objection raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. However, it cannot be raised if any facts have to be ascertained. Further, a preliminary objection must stem from the proceedings and raise pure points of law and should not deal with disputed facts nor should it derive its foundation from factual information. 98. The 2nd Defendant submits that the Plaintifi contends as follows in the Plaint; a. That the 2nd Defendant demanded an excessive sum of Kshs. 32,000,000/= and yet the liability was limited to Kshs. 5,600,000/=. b. That the 2nd Defendant failed to provide proper accounts. c. That the 2nd Defendant issued improper statutory notices. d. That the suit parcel of land was undervalued. e. That the 2nd Defendant failed to remit the surplus sum of money that was received after the sale https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3098/eng@2026-05-21 9

page 9 of 14

99. The 2nd Defendant submits that the said issues are generally on its exercise of statutory power of sale which issues are commercial in nature and ought to be determined by the Commercial Division of the High Court. 100. The 2nd Defendant also submits that this Court does not therefore have jurisdiction to hear and determine the suit. 101. The Plaintifi submits that the issues raised in the plaint relate to the sale of the suit parcel of land at an under value. 102. The Plaintifi also submits that the suit parcel of land is likely to be sold and therefore the dispute relates to ownership and disposition of land which falls under the jurisdiction of this Court. 103. The Plaintifi further submits that the Commercial Division of the High Court only has jurisdiction to hear suits where the main relief sought is the enforcement of commercial contracts. 104. The 5th Defendant submits that the issues raised in the present suit are with regard to the 2nd Defendant’s exercise of its statutory power of sale. 105. The 5th Defendant also submits that that the issues raised are on the validity of the statutory notices, whether there was default in the repayment of the loan, valuation among other issues. 106. The 5th Defendant further submits that the said issues do not relate to use and/or occupation of land and this Court does not therefore have jurisdiction to hear and determine the suit. 107. The Court of Appeal in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [2017] eKLR held as follows; “ 40. To the appellant, the charge was an instrument granting an interest in the land, hence jurisdiction in the matter lay with the ELC. However, under Section 2 of the said Act, an instrument is a writing or enactment which creates or afiects legal or equitable rights and liabilities. For the purposes of this suit, that instrument was the charge. However, it bears repeating that the cause of action herein was never the charge (instrument) but the amounts due and owing thereunder. Neither the charge instrument nor the creation of an enforceable interest thereunder, were disputed. The main questions to be determined were the tabulation of the sums owing and whether statutory notices had issued prior to the attempted statutory sale. 41. Furthermore, the jurisdiction of the ELC to deal with disputes relating to contracts under Section 13 of the ELC Act ought to be understood within the context of the Court’s jurisdiction to deal with disputes connected to ‘use’ of land as discussed herein above. Such contracts, in our view, ought to be incidental to the ‘use’ of land; they do not include mortgages, charges, collection of dues and rents which fall within the civil jurisdiction of the High Court…” (Emphasis mine) 108. In the Plaint, the Plaintifi avers that on 10th November, 2015, the 1st Defendant acting through the 4th Defendant applied for and was ofiered a banking facility of Kshs. 11,200,000/= by the 2nd Defendant. 109. The Plaintifi also avers that at the request of the 4th Defendant, the Plaintifi agreed to guarantee part of the loan facility in the sum of Kshs. 5,600,000/=. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3098/eng@2026-05-21 10

page 10 of 14

110. The Plaintifi further avers that he ofiered the suit parcel of land as security and a charge was registered in favour of the 2nd Defendant. 111. It is the Plaintifi’s averment that the 1st Defendant defaulted in repaying the loan and the 2nd Defendant instructed the 3rd Defendant to sell the suit parcel of land. 112. It is also the Plaintifi’ ,s averment that the 3rd Defendant issued to him a Redemption Notice and a Notice of Sale which required him to settle the sum of Kshs. 32,998,454.42. 113. It is further the Plaintifi’s averment that contrary to the terms of the Charge, the 2nd Defendant treated the suit parcel of land as security for the full outstanding indebtedness of the 1st Defendant. 114. The Plaintifi avers that the 2nd Defendant did not give him the accurate accounts of how the sum of Kshs. 32,998,454.42 was arrived at and neither did the 2nd Defendant produce a signed Memorandum increasing or varying the guaranteed sum of money. 115. The Plaintifi also avers that the suit parcel of land was sold on 17th February, 2025 for Kshs. 13,000,000/ = which is below the market value and the 2nd Defendant failed to remit the balance of the purchase price after deducting the sum of money that was secured. 116. The prayers sought in the Plaint have been set out in the preceding paragraphs but I will nonetheless replicate them as hereunder; a. A declaration that the 2nd Defendant acted unlawfully and in breach of the charge when it demanded repayment of the borrower’s entire indebtedness of Kshs. 32,998.454.42 from the Plaintifi who had only guaranteed the limited sum of Kshs. 5,600,000. b. A declaration that the sale and transfer of the suit property L.R. NO. Kericho/Chepsir/S.S 311 to the 5th Defendant was unlawful, irregular, null and void. c. A declaration that the purported sale of L.R. No. Kericho/Chepsir/S.S 311 at the grossly undervalued price of Kshs. 13,000,000 against its true open market value of Kshs. 32,500,000 was unlawful, fraudulent, and null and void. d. A declaration that the Plaintifi's liability as guarantor was strictly limited to Kshs. 5,600,000 as per the charge instrument and that the 2nd Defendant acted unlawfully in seeking to recover sums beyond that amount from the Plaintifi's property. e. An order declaring that the Plaintifi be discharged from liability for any sums exceeding the guaranteed amount of Kshs. 5,600,000. f. An order directing the Chief Land Registrar to cancel the title issued to the 5th Defendant and to restore the suit property in (sic) the Plaintifi's name. g. In the alternative to (f) above and without prejudice to the foregoing, an award of Special damages in the sum of Kshs. 26,900,000 being the value of the property at 32,500,000 less the guaranteed sum of Kshs. 5,600,000. (sic) h. General damages for unlawful deprivation of property, inconvenience, and breach of duty. i. Costs of this suit. j. Interest on g) and h) above at Court rates from the date of filing suit until payment in full. k. Any other relief that this Honourable Court may deem just and-expedient to grant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3098/eng@2026-05-21 11

page 11 of 14

117. The dominant issue, as can be read from the Plaint, is whether the 2nd Defendant acted unlawfully in demanding that the Plaintifi pays Kshs. 32,998,454.42 and yet he had only guaranteed the sum of Kshs. 5,600,000/=. All other prayers are hinged on this determination. 118. The Court of Appeal in P.J. Dave Flowers Limited v Limuru Hills Limited & 2 others [2022] KECA 129 (KLR) considered the determination in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others (supra) and held as follows; “ 19. The relationship between the parties and the prayers sought in the Cooperative Bank Case were distinctly difierent. The applicant therein was the chargor, who sought to restrain the chargee from placing advertisements for the sale of the suit properties therein by public auction or ofiering the said properties for sale by public auction or otherwise, and from taking any further steps in the exercise of its statutory power of sale. This Court found that this relationship arising from a charge had nothing to do with use of the land, and was limited to ensuring that the chargee is assured of the repayment of the money he has advanced the chargor. Further, that a charge did not constitute use of land within the meaning of Article 162 of the Constitution, and the cause of action therein was not the validity of the charge, but a question of accounts.” (Emphasis mine) 119. In the present suit it is evident that the dispute is majorly on the question of accounts which is a commercial dispute. As was held in Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others (supra), the said issue falls within the jurisdiction of the High Court. 120. Taking the foregoing into consideration, I find that this Court lacks jurisdiction to hear and determine this suit. B. Whether the present suit is an abuse of the Court process. 121. This issue addresses ground (1) of the 2nd Defendant’s preliminary objection. 122. The 2nd Defendant contends that the present suit is an abuse of the Court process as the issues raised herein were raised in Kericho High Court Case No. 5 of 2018 and Kericho HC Civil Case No. E011 of 2024. 123. The 2nd Defendant submits that Kericho High Court Case No. 5 of 2018 was dismissed on 20th May, 2024 for want of prosecution while in Kericho HC case No. E011 of 2024, the Plaintifi’s application seeking injunctive reliefs was dismissed. 124. The Plaintifi submits that the issues raised in Kericho HC Case No. E011 of 2024 related to the prospective sale of the suit parcel of land while the present suit has been filed after the suit parcel of land was sold. 125. The Plaintifi also submits that Kericho HC Case No. 5 of 2018 was dismissed for want of prosecution and therefore it was not determined on its merits. 126. The Plaintifi further submits that the present suit is therefore not an abuse of the Court process. 127. The 5th Defendant did not submit on this issue. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3098/eng@2026-05-21 12

page 12 of 14

128. It is important to note that the 2nd Defendant has premised its contention that the present suit is an abuse of the Court process on Kericho HC Case No. 5 of 2018 and Kericho HC Civil Case No. E011 of 2024 and the determinations made therein. 129. In order for the Court to make the said finding, it has to look at the Pleadings filed in Kericho HC Case No. 5 of 2018 and Kericho HC Civil Case No. E011 of 2024. Also, the Court has to look at the ruling alleged to have been delivered in Kericho HC Civil Case No. E011 of 2024. 130. As was held in Oraro v Mbaja (supra), a Preliminary Objection raise pure points of law and should not deal with disputed facts nor should it derive its foundation from factual information. 131. It is my view that in ground (1) of the Preliminary Objection the 2nd Defendant is inviting the Court to make factual inquiries and this goes beyond the scope of a Preliminary Objection. Therefore, I find that this ground of the 2nd Defendant’s preliminary objection lacks merit. C. Whether the present suit is barred by statutory and equitable principles. 132. This issue addresses ground (3) of the 2nd Defendant’s Preliminary Objection. 133. The 2nd Defendant contends that the present suit is barred by the following statutory and equitable principles; a. The protection of the 5th Defendant as an innocent purchaser for value under Section 99 of the Land Act, 2012. b. Issue estoppel which bars relitigation of notices, balances and valuation determined prior. (sic) c. Laches due to the Plaintifi’s inordinate delay of over seven months since the sale on 27th February, 2025 prejudicing the Defendants. (sic) 134. Given my determination on issue (a) above. It shall not be necessary to consider this question. 135. Before penning ofi, I note that the 5th Defendant has extensively submitted on whether the present suit is sub judice. 136. It is important to note that the 2nd Defendant’s Preliminary Objection did not raise the issue of sub judice. 137. In the judicial decision of FMS v MAS [2020] eKLR the Court held as follows; “ It is trite law that Submissions are not pleadings and that new issues cannot be raised in submissions. In Republic vs. Chairman Public Procurement Administrative Review Board & another Ex parte Zapkass Consulting and Training Limited & another [2014] Korir, J. stated: “ The Applicant, the respondents and the interested party all introduced new issues in their submissions. Submissions are not pleadings. There is no evidence by way of afidavits to support the submissions. New issues raised by way of submissions are best ignored.” (Emphasis mine) 138. As was held in the above cited judicial decision, new issues cannot be raised in submissions. That being the case, this Court will disregard the submissions by the 5th Defendant on the issue of sub judice. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3098/eng@2026-05-21 13

page 13 of 14

D. Who should bear costs of the Preliminary Objection. 139. The general rule is that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. Disposition 140. Taking the foregoing into consideration, I find that the 2nd Defendant’s Preliminary Objection dated 15th October, 2025 is merited. Consequently, this suit is hereby struck out with costs to the 2nd and 5th Defendants. 141. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 21ST DAY OF MAY, 2026. L. A. OMOLLO JUDGE. In the presence of: Miss Chepkemoi for the Plaintifi Miss Waheedi for the 2nd Defendant Miss Muthee for Mr. Onsare for 2nd Defendant. Court Assistant; Mr. Joseph Makori https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3098/eng@2026-05-21 14

page 14 of 14