Nguyo v Watts Auctions & 2 others (Land Case E375 of 2025) [2026] KEELC 4751 (KLR)

honourable court lacks the jurisdiction to entertain this matter. 3. The respondent to provide the costs of this application. 2. The application is premised on the grounds inter alia that the plaintiff/respondent is also the plaintiff in HCCOMM no. E510 of 2025, Twenty Twenty Ventures & James Murigo Nguyo v African Banking Corporation Limited & Watts Auctioneers. The application is supported by the affidavit of Olando Olembo, advocate sworn even date. The learned counsel deposed that the plaintiff/respondent filed the plaint dated 25 th July, 2025, and on the same day filed a similar suit in the commercial division of the high court (HCCOMM NO. E510 OF 2025). 3. He deposed that both cases involved the same parties (Twenty Twenty Ventures & James Murigu Nguyo vs. African Banking Corporation Limited & Watts Auctioneers), the same suit property (L.R. NO. 209/8524/102), and sought the same orders (restraining the statutory power of sale). He further deposed that since the identical matter was already pending before the 2|P a g e R U L I N G E L C L C N O . O N 2 3 R D J U L Y 2 0 2 6 . E 3 7 5 O F 2 0 2 5 D E L I V E R E D V I R T U A L L Y

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commercial division and was scheduled for highlighting of submissions on 25th February 2026, the current suit contravened the mandatory provisions of Section 6 of the Civil Procedure Act. 4. The learned counsel deposed that the plaintiff/respondent had previously instituted two other suits (MCC NO. E7983 OF 2021 and HCC NO. 5 OF 2020) in an attempt to stop the bank from exercising its statutory power of sale. Further, that this court lacked the proper jurisdiction to entertain the matter. He contends that since the core issues emanated from a commercial loan taken from the African Banking Corporation Limited, its jurisdiction rightly belonged to the commercial division of the high court, where the parallel suit was already lodged. 5. In opposition thereto, the plaintiff/respondent filed his replying affidavit sworn on 12th December, 2025. He deposed that he had never appeared in any court regarding the case in HCCOMM no. E510 of 2025 despite being the owner of the house and suit land. He further deposed that he had not 3|P a g e R U L I N G E L C L C N O . O N 2 3 R D J U L Y 2 0 2 6 . E 3 7 5 O F 2 0 2 5 D E L I V E R E D V I R T U A L L Y

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instructed anyone, including any advocate or entity, to file or prosecute the same on his behalf. He added that he had never appeared before any court on any case, and that the substratum of the dispute was land and title thereto and therefore this court had the requisite jurisdiction notwithstanding the involvement of commercial or financial instruments. 6. The learned counsel for the 1 st defendant/applicant filed a further affidavit sworn on 31st March, 2026. He deposed that he firm of Mogeni & Company Advocates filed a notice of change of advocates dated 15th September, 2025, indicating that they represent both plaintiffs in HCCOMM NO. E510 OF 2025. Further, that the plaintiff/respondent never denied representation in the matter, despite being aware of its existence. 7. The application was canvassed through written submissions. The 1st defendant/applicant filed its written submissions dated 6th April, 2026 while the plaintiff/respondent filed his written submissions dated 9 th April, 2026. I have carefully considered the application, the replies and the 4|P a g e R U L I N G E L C L C N O . O N 2 3 R D J U L Y 2 0 2 6 . E 3 7 5 O F 2 0 2 5 D E L I V E R E D V I R T U A L L Y

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submissions filed by the parties. The issue for determination is whether the instant application and suit is sub judice and whether the court has jurisdiction to determine the suit. 8. Section 6 of the Civil Procedure Act provides as follows:“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.” 9. Further in the case of Kenya National Commission on Human Rights Electoral & v Attorney Boundaries General; Commission Independent & 16 others (Interested Parties) (Advisory Opinion Reference 1 of 2017) [2020] KESC 54 (KLR) the Supreme court held as follows:“The term “subjudice” is defined in Blacks Law Dictionary 9th Edition as:5|P a g e R U L I N G E L C L C N O . O N 2 3 R D J U L Y 2 0 2 6 . E 3 7 5 O F 2 0 2 5 D E L I V E R E D V I R T U A L L Y

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“Before the Court or Judge for determination”. The purpose of the sub judice rule is to stop filing of multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of Courts issuing with competent conflicting jurisdiction decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before Court with jurisdiction the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. The party that seeks to invoke the doctrine of sub judice must therefore establish that there is more than one suit over the same subject matter, that one suit was instituted before the other, that both suits are pending before Courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.” 10. The 1st defendant/applicant has challenged the jurisdiction of this court to hear and determine this suit on grounds that it 6|P a g e R U L I N G E L C L C N O . O N 2 3 R D J U L Y 2 0 2 6 . E 3 7 5 O F 2 0 2 5 D E L I V E R E D V I R T U A L L Y

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offends Section 6 of the Civil Procedure Act. Secondly, the dispute between the parties is commercial in nature and it is a preserve of the commercial division of the high court. On the other hand, the plaintiff/respondent has distanced himself from any proceedings before any court and maintained that this court has the requisite jurisdiction to determine this suit. 11. I have keenly perused the documents relied on by the 1 st defendant/applicant, and I note that there is a pending matter before the high court commercial division being HCCOMM no. E510 of 2025 Twenty Twenty Ventures & James Murigu Nguyo V African Banking Corporation Limited & Watts Auctioneers with a notice of motion dated 1 st August, 2025. A reading of the application before the high court indicates that the subject matter in that suit is LR no. 209/8524/102 which is similar to this suit. In both suits, the main issue is similar in nature being the statutory power of sale. On this ground, I am satisfied that this suit offends Section 6 of the Civil Procedure Act and it is equally a gross abuse of the court process. 7|P a g e R U L I N G E L C L C N O . O N 2 3 R D J U L Y 2 0 2 6 . E 3 7 5 O F 2 0 2 5 D E L I V E R E D V I R T U A L L Y

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12. Secondly, and in light of the court of appeal decision in Cooperative Bank of Kenya Limited v Njuguna & 5 others [2017] KECA 79 (KLR), this court lacks the jurisdiction to determine claims challenging the statutory power of sale, auction or otherwise emanating from charges. This jurisdiction rests with the high court. Thus, I find merit in the notice of motion dated 4th December, 2025. The plaint dated 25 th July, 2025 is hereby struck out. With costs to the defendant/applicant. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY ON THIS 23RD DAY OF JULY, 2026. HON. MBOGO C.G. JUDGE 23/07/2026. In the presence of: Mr. Benson Agunga - Court assistant Mr. Olembo for the 1st Defendant/Applicant Plaintiff/Respondent - present in person 8|P a g e R U L I N G E L C L C N O . O N 2 3 R D J U L Y 2 0 2 6 . E 3 7 5 O F 2 0 2 5 D E L I V E R E D V I R T U A L L Y 1 st

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