1. The Notice of Motion dated 23rd June 2026 is presented under Articles 2, 3(1), 10, 19–23, 43(1)(a), 43(1)(f), 45, 53(1)(b)–(e), 53(2), and 165(3)(b) of the Constitution; Section 8(1) of the Children Act, 2022; the Fair Administrative Action Act, 2015; and the international instruments incorporated through Articles 2(5)–(6). The Petitioners seek conservatory orders restraining enforcement of the transfer letter dated 13 April 2026, restraining disciplinary action against their mother, and preserving her posting within Nairobi or reasonable commuting distance pending determination of the Petition. They also seek confidentiality orders to protect the minors’ identities. The Motion asserts that absent interim relief, the Respondent’s administrative act will inflict “imminent, continuing and irreversible violation” of the children’s rights to education, health, parental care, and the paramountcy of their best interests.
2. The Petition is framed expressly as a children’s rights application, not an employment dispute. The two minor Petitioners, aged nine and six, bring the matter through their mother and next friend under Article 22(2)(b). The affidavit emphasises that the impugned transfer, intended to take effect immediately during the pendency of approved leave, removes their sole caregiver from Nairobi and thereby threatens their constitutional entitlements under Articles 43 and 53.
3. The transfer decision was issued without reasons, without a reporting date, and without notice, in breach of multiple mandatory provisions of the Deployment and Transfer Policy, 2018. These include Principle 3(vii) (prohibiting transfers causing undue suffering to an officer’s family), Principle 3(viii) (requiring adequate notice for schooling arrangements), Principle 3(ix) (prohibiting transfers as disciplinary tools), and Paragraphs 5(iii)(a), 5(iv)(a), 5(iv)(b), and 6(i)(a) (fixing tenure, notice periods, and eligibility thresholds). The Respondent ignored explicit written notice of the children’s schooling, ages, classes, and the 2nd Petitioner’s chronic medical condition requiring monthly review to monitor potential rheumatic valvular disease. The affidavit notes that the reconsideration response of 4 May 2026 “made no reference to the children at all.”
4. The Petitioners rely on Article 53(2) and Section 8(1) of the Children Act, which impose an affirmative duty on administrative authorities to treat the best interests of the child as the primary and paramount consideration. The Respondent’s action to transfer their mother ‘with immediate effect’ has a direct and negative effect on them as it takes effect in the middle of a school term and occasions hardship to the 2 nd Petitioner who has been diagnosed with a chronic illness. Reference is made to decisions that confirms their standing and the constitutional threshold for conservatory relief: RAB and RAB (Minors Suing through their Mother and Next Friend) v M Schools and 3 others [2025] KEHC 2475 (KLR) ; Gatirau Peter Munya v Dickson Mwenda Kithinji and 2 others [2014] KESC 30 (KLR ); and the four part test in Board of Management of Uhuru Secondary School v City County Director of Education and 2 others [2015] eKLR .
5. It is submitted that the substratum of the Petition would be rendered nugatory if the transfer is enforced. The harm feared is irreversible and cannot be cured by a judgment delivered months later. The Respondent’s Policy contemplates disciplinary action for failure to report, exposing the mother to immediate risk of suspension or loss of salary the sole financial foundation of the children’s welfare. This satisfies the “real danger of prejudice” requirement articulated in Wilson Kaberia Nkunja v The Magistrate and Judges Vetting Board and others [2016] eKLR.
6. It is argued that the public interest lies overwhelmingly in favour of interim protection. State organs have a constitutional imperative to comply with Article 53(2) of the Constitution and Section 8(1) of the Children Act when making administrative decisions affecting children. The Respondent, with a nationwide establishment of prosecution counsel, has the administrative capacity to retain the mother within Nairobi or Kajiado without prejudice to service delivery. The affidavit further notes that the internal reconsideration mechanism has been left dormant beyond policy timelines, invoking Kenya Revenue Authority and 2 others v Doshi Iron Mongers Ltd [2024] KECA 640 (KLR) to argue that an open -ended remedy is not “available, effective, or sufficient.” The proportionality limb as articulated in the Munya Case (Supra) favours the Petitioners; the magnitude of harm to the children vastly outweighs the temporary administrative inconvenience to the Respondent
SUMMARY OF RESPONSE BY THE RESPONDENT
7. The Respondent’s Preliminary Objection dated 29 July 2026 asserts that the Petition and Notice of Motion of 23 June 2026 are fatally incompetent for being res judicata, sub judice, premature and constituting an abuse of court process. It is argued that the Next Friend previously litigated the same dispute in Josephine Museywa Kivali v Vivian Kambaga & 3 Others, Nairobi ELRC Petition No. E141 of 2026 , which was dismissed on 18 June 2026. The Respondent contends that the present Petition is a disguised re -l itigation of the same issues, merely repackaged through the minors, and that the filing of a Notice of Appeal on 23 June 2026 renders the matter sub judice . The Respondent therefore prays that the Petition be struck out in limine .
8. The Respondent urges that the Petition is an impermissible appeal against the ELRC decision, disguised as a fresh Petition and invokes the doctrine of constitutional avoidance, asserting that the Petition improperly elevates an ordinary employment dispute into a constitutional claim. It is alleged that the minors have been substituted to whip the emotions of the Court and circumvent procedural bars. The Respondent concludes that the Petition does not meet the threshold for conservatory relief and should be dismissed.
9. The Replying Affidavit of Dr. Solomon Kiawa, sworn on 30 July 2026, provides a detailed employment history of the Next Friend from her appointment in 2013 to the impugned transfer of 13 April 2026. Dr. Kiawa avers that all transfers, including the one to Winam Law Courts, were undertaken in strict compliance with the ODPP Human Resource Policies and Procedures and the Deployment and Transfer Policy, 2018. He states that the impugned transfer was motivated by staffing needs, national integration, and service delivery imperatives, and not by any improper purpose. He further asserts that the Next Friend reported to Kisumu on 30 June 2026, confirming compliance with the transfer.
10. Dr. Kiawa deposes that the Next Friend’s internal appeal against the transfer, lodged on 20 April 2026, is still pending before the ODPP Deployment Committee. He argues that the Next Friend prematurely filed the ELRC Petition before the DPP could act on the Committee’s recommendation, thereby “stalling the process.” He further contends that Clause 10(e) of the Transfer Policy imposes timelines only on the Committee, not on the DPP, and therefore the appeal process remains valid and ongoing. The affidavit asserts that the Petitioners cannot rely on the alleged dormancy of the internal mechanism to invoke constitutional jurisdiction.
11. The Respondent further argues that the instant Petition is identical and on all fours with the ELRC Petition: the parties (save for the minors), the issues, the prayers, and the legal provisions relied upon are materially the same. Dr. Kiawa states that the ELRC declined conservatory orders on 8 May 2026 and subsequently dismissed the Petition on 18 June 2026 as being “not a proper petition” and for want of merit. He annexes the ELRC pleadings, the Grounds of Opposition filed there, and the Ruling of Hon. Mbaru, J, to demonstrate duplication. The affidavit asserts that the minors are being used as proxies to obtain conservatory orders previously denied.
12. Finally, the Respondent contends that the Next Friend absconded duty for 42 days between 27 April 2026 (when leave ended) and 29 June 2026 and has offered no explanation. It is argued that this conduct undermines her credibility and disentitles her to equitable relief. The affidavit emphasises that Clause 11(ii)(a) of the Transfer Policy makes efficient, effective, and fair delivery of prosecution services the paramount consideration in deployment decisions, overriding personal circumstances. The Respondent therefore urges the Court to decline all conservatory orders and dismiss the Petition.
ANALYSIS AND DETERMINATION
13. Having considered the pleadings herein, the rival submissions by the parties and the relevant law, I frame the following as the issues for determination;
a. Whether the preliminary objection as framed is competent?
b. Arising from (a) above whether conservatory orders sought can issue?
c. What are the consequential orders
14. The Respondent’s Preliminary Objection targets both the notice of motion and the Petition. The objection rests on two principal grounds: res judicata and sub judice , arising from proceedings previously instituted by the Petitioners’ Next Friend before the Employment and Labour Relations Court (ELRC) in Josephine Museywa Kivali v Vivian Kambaga & 3 Others, ELRC Petition No. E141 of 2026, and from the filing of a Notice of Appeal on 23 June 2026.
37. Res judicata refers to the judicial principle against re-litigation of disputes that have been conclusively determined on the merits. That doctrine is codified under Section 7 of the Civil Procedure Act, CAP 21 as follows:
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.
38. The Supreme Court in John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] KECA 472 (KLR) underscored the significance of res-judicata stated as follows:
[54]. The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.
[55].It emerges that, contrary to the respondent’s argument that this principle is not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata is not affected by the substantial-justice principle of Article 159 of the Constitution, intended to override technicalities of procedure. Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept.
[56]. The learned authors of Mulla, Code of Civil Procedure, 18th Ed 2012 have observed that the principle of res judicata, as a judicial device on the finality of court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p 293):
The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.
39. The Court went on to observe that:
[59]. For res judicata to be invoked in a civil matter the following elements must be demonstrated:
a. There is a former Judgment or order which was final;
b. The Judgment or order was on merit;
c. The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d. There must be between the first and the second action identical parties, subject matter and cause of action.
40. In Hamptons Hospital Limited v Chief Justice & President of the Supreme Court of Kenya & 2 others; Sika Kenya Limited & another (Interested Parties) [2025] KEHC 1173 (KLR) the Court clarified that the principle of res judicata does not only apply in barring similar or identical suits that have been fully litigated and concluded between the parties or their representative but also precludes similar issues that have been judicially considered and determined on the merits from featuring for re-litigation in what has now come to be known as issue-based estoppel where a party in a former suit or representative of such party cannot re-introduce the matter in a subsequent suit even if that suit be different. The principle of res judicata can thus be summed up as incorporating two concepts of claim exclusion and issue preclusion.
41. The Court cited with approval the decision in Mumira v Attorney General [2022] KEHC 271 (KLR) where the Court held as follows:
[18]. In the United Kingdom, res judicata is known as cause of action estoppel or issue estoppel… (A distinction is made between “cause of action estoppel” and “issue estoppel”. In the first case— “the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter.” (Arnold v National Westminster Bank [1991] 2 AC 93 (HL) at 104.) In the second case— “a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue.” (Arnold at 105.)
42. In Okiya Omtatah Okoiti v Communications Authority of Kenya & 14 others [2015] KEHC 7100 (KLR) Lenaola J (as he then was) invoked issue-based estoppel when he held as follows:
In my view, he sued the officials of the 1st Respondent so as to disguise the proper parties who were in the first Petition and that attempt cannot affect my conclusions above and help him evade the doctrine of res judicata on the main issue of digital migration which is the common thread running through all the Petitions as can be seen above. I shall repeat for emphasis that the said issue cannot be re-opened merely by re-introducing the rights of viewers to migrate and re-packaging it differently as a violation of the provisions of the Constitution and that of the Bill of Rights so as to prevaricate the principle of res judicata.
43. The Court reiterated that the res judicata principle is based on two tenets; that there must be an end to litigation and that a party should not be vexed twice over the same cause. The Courts have to be extra vigilant to prevent and guard against litigants who ingeniously try to avoid the application of the doctrine of res judicata and in this regard the Court concurred with Kuloba J. in Njangu vs Wambugu and Another Nrb HCC No. 2340 of 1991 on the importance of having a closure to litigation when he stated-
If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his aces some cosmetic facelift on every occasion he comes to Court, then I do not see the use of the doctrine of res judicata
44. The next friend herein was the Petitioner in Josephine Museywa Kivali v Vivian Kambaga & 3 Others, Nairobi ELRC Petition No. E141 of 2026 . The issue in that Petition was the decision to transfer the next friend herein vide the impugned letter of 13 th April 2026. The Court struck out both the Notice of Motion and the Petition citing the doctrine of constitutional avoidance.
45. There is therefore a Court order by a court of competent jurisdiction requiring the next friend to report to her new duty station. That order cannot be circumvented otherwise than by an appeal overturning it. Instead of pursuing that channel, the next friend has presented this Petition. It is evident that this Court is at the interim stage invited to pronounce on the same issue which is , ‘whether the intended transfer can be stayed by this Court when the next friend has not exhausted the respondent’s internal processes’. The answer to that must be a resounding no. Not even invoking Article 53 of the Constitution and the paramountcy principle will come to the aid of the next friend in the circumstances.
46. I am not persuaded that the present proceedings fall within the lawful exercise of this Court’s jurisdiction. The petitioner invokes the best interests of the children, a consideration of undeniable constitutional weight under Article 53(2); yet that principle, important as it is, does not clothe the Court with authority to reopen or re ‑ litigate matters already determined, nor does it permit a party to circumvent procedural finality by reappearing in a different guise to pursue relief previously declined. The earlier suit, in which conservatory orders were sought to forestall the same impending transfer, was struck out for want of jurisdiction on account of the doctrines of constitutional avoidance and exhaustion of existing remedies.
47. The present petition, brought through the device of acting as ‘next friend’ of the children, seeks substantively identical orders over the same subject matter. That manoeuvre amounts to an impermissible collateral attack on a concluded judicial process and constitutes an abuse of the Court’s process. The protection of children must be secured within the confines of the law, not outside it; and where a litigant seeks to revive a spent claim through procedural re ‑ packaging, the Court is duty ‑ bound to decline jurisdiction. Accordingly, I find that the petition is incompetent, amounts to an abuse of the Court’s process, and cannot be sustained
48. The next friend has been directed to exhaust the internal remedies of the respondent; until she does this, any claim she presents will be barred by the doctrines of constitutional avoidance and exhaustion. Having determined that the matter is res judicata the other issues framed for determination are rendered otiose and incapable of sustaining judicial adjudication
49. In conclusion, I find that the current Petition is res judicata on account of issue-based estoppel and the consequence of that finding is that the Petition is struck out. The Petition having been struck out, the Notice of Motion has no feet on which to stand and is also accordingly struck out.
50. Given the circumstances of the case, there shall be no order as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 18 th AUGUST 2026
23
2. The Petition is framed expressly as a children’s rights application, not an employment dispute. The two minor Petitioners, aged nine and six, bring the matter through their mother and next friend under Article 22(2)(b). The affidavit emphasises that the impugned transfer, intended to take effect immediately during the pendency of approved leave, removes their sole caregiver from Nairobi and thereby threatens their constitutional entitlements under Articles 43 and 53.
3. The transfer decision was issued without reasons, without a reporting date, and without notice, in breach of multiple mandatory provisions of the Deployment and Transfer Policy, 2018. These include Principle 3(vii) (prohibiting transfers causing undue suffering to an officer’s family), Principle 3(viii) (requiring adequate notice for schooling arrangements), Principle 3(ix) (prohibiting transfers as disciplinary tools), and Paragraphs 5(iii)(a), 5(iv)(a), 5(iv)(b), and 6(i)(a) (fixing tenure, notice periods, and eligibility thresholds). The Respondent ignored explicit written notice of the children’s schooling, ages, classes, and the 2nd Petitioner’s chronic medical condition requiring monthly review to monitor potential rheumatic valvular disease. The affidavit notes that the reconsideration response of 4 May 2026 “made no reference to the children at all.”
4. The Petitioners rely on Article 53(2) and Section 8(1) of the Children Act, which impose an affirmative duty on administrative authorities to treat the best interests of the child as the primary and paramount consideration. The Respondent’s action to transfer their mother ‘with immediate effect’ has a direct and negative effect on them as it takes effect in the middle of a school term and occasions hardship to the 2 nd Petitioner who has been diagnosed with a chronic illness. Reference is made to decisions that confirms their standing and the constitutional threshold for conservatory relief: RAB and RAB (Minors Suing through their Mother and Next Friend) v M Schools and 3 others [2025] KEHC 2475 (KLR) ; Gatirau Peter Munya v Dickson Mwenda Kithinji and 2 others [2014] KESC 30 (KLR ); and the four part test in Board of Management of Uhuru Secondary School v City County Director of Education and 2 others [2015] eKLR .
5. It is submitted that the substratum of the Petition would be rendered nugatory if the transfer is enforced. The harm feared is irreversible and cannot be cured by a judgment delivered months later. The Respondent’s Policy contemplates disciplinary action for failure to report, exposing the mother to immediate risk of suspension or loss of salary the sole financial foundation of the children’s welfare. This satisfies the “real danger of prejudice” requirement articulated in Wilson Kaberia Nkunja v The Magistrate and Judges Vetting Board and others [2016] eKLR.
6. It is argued that the public interest lies overwhelmingly in favour of interim protection. State organs have a constitutional imperative to comply with Article 53(2) of the Constitution and Section 8(1) of the Children Act when making administrative decisions affecting children. The Respondent, with a nationwide establishment of prosecution counsel, has the administrative capacity to retain the mother within Nairobi or Kajiado without prejudice to service delivery. The affidavit further notes that the internal reconsideration mechanism has been left dormant beyond policy timelines, invoking Kenya Revenue Authority and 2 others v Doshi Iron Mongers Ltd [2024] KECA 640 (KLR) to argue that an open -ended remedy is not “available, effective, or sufficient.” The proportionality limb as articulated in the Munya Case (Supra) favours the Petitioners; the magnitude of harm to the children vastly outweighs the temporary administrative inconvenience to the Respondent
SUMMARY OF RESPONSE BY THE RESPONDENT
7. The Respondent’s Preliminary Objection dated 29 July 2026 asserts that the Petition and Notice of Motion of 23 June 2026 are fatally incompetent for being res judicata, sub judice, premature and constituting an abuse of court process. It is argued that the Next Friend previously litigated the same dispute in Josephine Museywa Kivali v Vivian Kambaga & 3 Others, Nairobi ELRC Petition No. E141 of 2026 , which was dismissed on 18 June 2026. The Respondent contends that the present Petition is a disguised re -l itigation of the same issues, merely repackaged through the minors, and that the filing of a Notice of Appeal on 23 June 2026 renders the matter sub judice . The Respondent therefore prays that the Petition be struck out in limine .
8. The Respondent urges that the Petition is an impermissible appeal against the ELRC decision, disguised as a fresh Petition and invokes the doctrine of constitutional avoidance, asserting that the Petition improperly elevates an ordinary employment dispute into a constitutional claim. It is alleged that the minors have been substituted to whip the emotions of the Court and circumvent procedural bars. The Respondent concludes that the Petition does not meet the threshold for conservatory relief and should be dismissed.
9. The Replying Affidavit of Dr. Solomon Kiawa, sworn on 30 July 2026, provides a detailed employment history of the Next Friend from her appointment in 2013 to the impugned transfer of 13 April 2026. Dr. Kiawa avers that all transfers, including the one to Winam Law Courts, were undertaken in strict compliance with the ODPP Human Resource Policies and Procedures and the Deployment and Transfer Policy, 2018. He states that the impugned transfer was motivated by staffing needs, national integration, and service delivery imperatives, and not by any improper purpose. He further asserts that the Next Friend reported to Kisumu on 30 June 2026, confirming compliance with the transfer.
10. Dr. Kiawa deposes that the Next Friend’s internal appeal against the transfer, lodged on 20 April 2026, is still pending before the ODPP Deployment Committee. He argues that the Next Friend prematurely filed the ELRC Petition before the DPP could act on the Committee’s recommendation, thereby “stalling the process.” He further contends that Clause 10(e) of the Transfer Policy imposes timelines only on the Committee, not on the DPP, and therefore the appeal process remains valid and ongoing. The affidavit asserts that the Petitioners cannot rely on the alleged dormancy of the internal mechanism to invoke constitutional jurisdiction.
11. The Respondent further argues that the instant Petition is identical and on all fours with the ELRC Petition: the parties (save for the minors), the issues, the prayers, and the legal provisions relied upon are materially the same. Dr. Kiawa states that the ELRC declined conservatory orders on 8 May 2026 and subsequently dismissed the Petition on 18 June 2026 as being “not a proper petition” and for want of merit. He annexes the ELRC pleadings, the Grounds of Opposition filed there, and the Ruling of Hon. Mbaru, J, to demonstrate duplication. The affidavit asserts that the minors are being used as proxies to obtain conservatory orders previously denied.
12. Finally, the Respondent contends that the Next Friend absconded duty for 42 days between 27 April 2026 (when leave ended) and 29 June 2026 and has offered no explanation. It is argued that this conduct undermines her credibility and disentitles her to equitable relief. The affidavit emphasises that Clause 11(ii)(a) of the Transfer Policy makes efficient, effective, and fair delivery of prosecution services the paramount consideration in deployment decisions, overriding personal circumstances. The Respondent therefore urges the Court to decline all conservatory orders and dismiss the Petition.
ANALYSIS AND DETERMINATION
13. Having considered the pleadings herein, the rival submissions by the parties and the relevant law, I frame the following as the issues for determination;
a. Whether the preliminary objection as framed is competent?
b. Arising from (a) above whether conservatory orders sought can issue?
c. What are the consequential orders
14. The Respondent’s Preliminary Objection targets both the notice of motion and the Petition. The objection rests on two principal grounds: res judicata and sub judice , arising from proceedings previously instituted by the Petitioners’ Next Friend before the Employment and Labour Relations Court (ELRC) in Josephine Museywa Kivali v Vivian Kambaga & 3 Others, ELRC Petition No. E141 of 2026, and from the filing of a Notice of Appeal on 23 June 2026.
37. Res judicata refers to the judicial principle against re-litigation of disputes that have been conclusively determined on the merits. That doctrine is codified under Section 7 of the Civil Procedure Act, CAP 21 as follows:
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.
38. The Supreme Court in John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] KECA 472 (KLR) underscored the significance of res-judicata stated as follows:
[54]. The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively.
[55].It emerges that, contrary to the respondent’s argument that this principle is not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata is not affected by the substantial-justice principle of Article 159 of the Constitution, intended to override technicalities of procedure. Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept.
[56]. The learned authors of Mulla, Code of Civil Procedure, 18th Ed 2012 have observed that the principle of res judicata, as a judicial device on the finality of court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p 293):
The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.
39. The Court went on to observe that:
[59]. For res judicata to be invoked in a civil matter the following elements must be demonstrated:
a. There is a former Judgment or order which was final;
b. The Judgment or order was on merit;
c. The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and
d. There must be between the first and the second action identical parties, subject matter and cause of action.
40. In Hamptons Hospital Limited v Chief Justice & President of the Supreme Court of Kenya & 2 others; Sika Kenya Limited & another (Interested Parties) [2025] KEHC 1173 (KLR) the Court clarified that the principle of res judicata does not only apply in barring similar or identical suits that have been fully litigated and concluded between the parties or their representative but also precludes similar issues that have been judicially considered and determined on the merits from featuring for re-litigation in what has now come to be known as issue-based estoppel where a party in a former suit or representative of such party cannot re-introduce the matter in a subsequent suit even if that suit be different. The principle of res judicata can thus be summed up as incorporating two concepts of claim exclusion and issue preclusion.
41. The Court cited with approval the decision in Mumira v Attorney General [2022] KEHC 271 (KLR) where the Court held as follows:
[18]. In the United Kingdom, res judicata is known as cause of action estoppel or issue estoppel… (A distinction is made between “cause of action estoppel” and “issue estoppel”. In the first case— “the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter.” (Arnold v National Westminster Bank [1991] 2 AC 93 (HL) at 104.) In the second case— “a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re-open that issue.” (Arnold at 105.)
42. In Okiya Omtatah Okoiti v Communications Authority of Kenya & 14 others [2015] KEHC 7100 (KLR) Lenaola J (as he then was) invoked issue-based estoppel when he held as follows:
In my view, he sued the officials of the 1st Respondent so as to disguise the proper parties who were in the first Petition and that attempt cannot affect my conclusions above and help him evade the doctrine of res judicata on the main issue of digital migration which is the common thread running through all the Petitions as can be seen above. I shall repeat for emphasis that the said issue cannot be re-opened merely by re-introducing the rights of viewers to migrate and re-packaging it differently as a violation of the provisions of the Constitution and that of the Bill of Rights so as to prevaricate the principle of res judicata.
43. The Court reiterated that the res judicata principle is based on two tenets; that there must be an end to litigation and that a party should not be vexed twice over the same cause. The Courts have to be extra vigilant to prevent and guard against litigants who ingeniously try to avoid the application of the doctrine of res judicata and in this regard the Court concurred with Kuloba J. in Njangu vs Wambugu and Another Nrb HCC No. 2340 of 1991 on the importance of having a closure to litigation when he stated-
If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his aces some cosmetic facelift on every occasion he comes to Court, then I do not see the use of the doctrine of res judicata
44. The next friend herein was the Petitioner in Josephine Museywa Kivali v Vivian Kambaga & 3 Others, Nairobi ELRC Petition No. E141 of 2026 . The issue in that Petition was the decision to transfer the next friend herein vide the impugned letter of 13 th April 2026. The Court struck out both the Notice of Motion and the Petition citing the doctrine of constitutional avoidance.
45. There is therefore a Court order by a court of competent jurisdiction requiring the next friend to report to her new duty station. That order cannot be circumvented otherwise than by an appeal overturning it. Instead of pursuing that channel, the next friend has presented this Petition. It is evident that this Court is at the interim stage invited to pronounce on the same issue which is , ‘whether the intended transfer can be stayed by this Court when the next friend has not exhausted the respondent’s internal processes’. The answer to that must be a resounding no. Not even invoking Article 53 of the Constitution and the paramountcy principle will come to the aid of the next friend in the circumstances.
46. I am not persuaded that the present proceedings fall within the lawful exercise of this Court’s jurisdiction. The petitioner invokes the best interests of the children, a consideration of undeniable constitutional weight under Article 53(2); yet that principle, important as it is, does not clothe the Court with authority to reopen or re ‑ litigate matters already determined, nor does it permit a party to circumvent procedural finality by reappearing in a different guise to pursue relief previously declined. The earlier suit, in which conservatory orders were sought to forestall the same impending transfer, was struck out for want of jurisdiction on account of the doctrines of constitutional avoidance and exhaustion of existing remedies.
47. The present petition, brought through the device of acting as ‘next friend’ of the children, seeks substantively identical orders over the same subject matter. That manoeuvre amounts to an impermissible collateral attack on a concluded judicial process and constitutes an abuse of the Court’s process. The protection of children must be secured within the confines of the law, not outside it; and where a litigant seeks to revive a spent claim through procedural re ‑ packaging, the Court is duty ‑ bound to decline jurisdiction. Accordingly, I find that the petition is incompetent, amounts to an abuse of the Court’s process, and cannot be sustained
48. The next friend has been directed to exhaust the internal remedies of the respondent; until she does this, any claim she presents will be barred by the doctrines of constitutional avoidance and exhaustion. Having determined that the matter is res judicata the other issues framed for determination are rendered otiose and incapable of sustaining judicial adjudication
49. In conclusion, I find that the current Petition is res judicata on account of issue-based estoppel and the consequence of that finding is that the Petition is struck out. The Petition having been struck out, the Notice of Motion has no feet on which to stand and is also accordingly struck out.
50. Given the circumstances of the case, there shall be no order as to costs.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 18 th AUGUST 2026
23