'1. The Applicant brought the Notice of Motion dated 18th October 2025 under Article 50 of the Constitution, Section 3A of the Civil Procedure Act and Section 73 of the Co-operative Societies Act. It is supported by the Applicant’s affidavit sworn on the same date, together with annexures including the surcharge order dated 25th January 2019 and Gazette Notices Nos. 334 of 2019 and 7471 of 2021.The Applicant seeks:
1. A declaration that the surcharge order dated 25th January 2019 is invalid, null and void
2. An order of stay of execution pending appeal.
3. Costs of the Motion.
4. The Applicant contends the surcharge was issued by Geoffrey Njang’ombe who, on the date of issuance, did not lawfully hold the office of Commissioner for Co-operative Development, and that he was not afforded a hearing as required under Section 73(4). He disputes that the issues herein were determined in the earlier consolidated High Court appeal.
5. The Respondent opposes the application, contending that the matter is res judicata by virtue of Civil Appeal Nos. 13, 14, 15 and 16 of 2020 (Consolidated). It further asserts that the Court cannot invalidate a surcharge at an interlocutory stage and that the Applicant has not met the threshold for the grant of stay.
Issues for Determination
6. Having considered the Motion, the affidavits, the annexures, the Respondent’s response, the Memorandum of Appeal in Civil Appeal No. E043 of 2025, and the judgment in Civil Appeals Nos. 13, 14, 15 and 16 of 2020 (Consolidated), the Court is satisfied that the following issues arise for determination:
1) Whether the challenge to the surcharge and the grounds of appeal in Civil Appeal No. E043 of 2025 are barred by the doctrine of res judicata.
2) Whether the surcharge may be invalidated in the context of this interlocutory Motion.
3) Whether the Applicant has met the threshold for the grant of stay of execution pending appeal.
4) Whether any live issue remains in the appeal and what final orders ought to issue.
Analysis and Determination
1) Whether the appeal and the challenge to the surcharge are barred by res judicata
7. The Memorandum of Appeal raises complaints regarding the effect of general meeting resolutions, the impact of a letter purporting to withdraw the Tribunal proceedings, the propriety or existence of the inquiry that preceded the surcharge, and allegations of selective enforcement. These were precisely the matters placed before the High Court in Civil Appeals Nos. 13, 14, 15 and 16 of 2020 (Consolidated). In that judgment, the Court held that because the appellants had not lodged appeals under Section 74(1) of the Co-operative Societies Act, the surcharge was final and the Tribunal’s role under Section 75(1) was purely ministerial. The Court further held that no general meeting resolution, no internal directive of the society, and no subsequent letter could reopen or vary a surcharge that had already attained statutory finality, and that any contest touching on the propriety of the inquiry or allegations of unequal or selective enforcement was spent, those matters having only been properly approachable through a statutory appeal under Section 74(1).
8. The classical principle in Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 is that res judicata covers not only what was actually decided but “every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”
9. The Supreme Court of Kenya restated this doctrine in John Florence Maritime Services Ltd & Another v Cabinet Secretary for Transport & Infrastructure, Petition No. 17 of 2015, emphasising that res judicata is a substantive jurisdictional bar, applicable across all proceedings, and that once an issue has been determined or ought to have been raised earlier, it cannot be revived.
10. The Court of Appeal, in Mairani & 2 others v Director of Land Adjudication & Settlement & 3 others [2025] KECA 400 (KLR) similarly confirmed that res judicata prohibits not only re-litigation but also attempts to repackage or reframe matters already determined, noting that litigation must come to an end.
11. Applying these principles to the present matter, the issues raised in this appeal were either determined or properly belonged to the subject of the earlier consolidated litigation. The present attempt to revisit them is therefore barred by Section 7 of the Civil Procedure Act. The application and the appeal fall squarely within the doctrine of res judicata.
2) Whether the surcharge may be invalidated through the interlocutory application
12. Once a court determines that a matter is barred under Section 7 of the Civil Procedure Act, its jurisdiction over the dispute is extinguished and it cannot embark upon, or continue with, any further inquiry into the merits. The finding on res judicata is dispositive of both the appeal and the present application. The Court is therefore precluded from interrogating any consequential or ancillary reliefs that presuppose the existence of a live appeal.
13. In the circumstances, the prayer seeking a declaration that the surcharge is invalid does not arise for consideration, for the substratum upon which it rests has already been spent. It is accordingly moot and incapable of attracting further judicial attention.
3) Whether the Applicant has met the threshold for stay of execution
14. For the same reason, the question of stay of execution is equally moot. A finding that the appeal is barred by res judicata means that the appellate jurisdiction of this Court is spent, and no cognisable dispute remains for adjudication. In the absence of a subsisting appeal, there is no subject capable of being preserved or protected through an order of stay. The Court cannot grant interlocutory relief where it has already determined that it lacks jurisdiction over the substantive dispute, for interim orders cannot stand independently of a competent and viable appeal. The prayer for stay is therefore without foundation and does not arise for consideration.
4) Whether any live issue remains for determination in the appeal
15. Having found that all the issues raised in the Memorandum of Appeal were conclusively determined in the consolidated appeals, and that the surcharge dispute cannot be reopened without offending the doctrine of res judicata, it follows that this appeal is wholly spent. The appeal is divested of any substantive content capable of engaging the Court’s appellate jurisdiction, and there is therefore no surviving controversy that warrants adjudication.
Disposition
16. For the foregoing reasons, the Court makes the following orders:
1) The issues raised in this appeal are barred by res judicata under Section 7 of the Civil Procedure Act.
2) The Notice of Motion dated 18th October 2025 is dismissed
3) This appeal is hereby struck out in its entirety for want of a live controversy
4) Costs of both the application and the appeal shall be borne by the Appellant.
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1. A declaration that the surcharge order dated 25th January 2019 is invalid, null and void
2. An order of stay of execution pending appeal.
3. Costs of the Motion.
4. The Applicant contends the surcharge was issued by Geoffrey Njang’ombe who, on the date of issuance, did not lawfully hold the office of Commissioner for Co-operative Development, and that he was not afforded a hearing as required under Section 73(4). He disputes that the issues herein were determined in the earlier consolidated High Court appeal.
5. The Respondent opposes the application, contending that the matter is res judicata by virtue of Civil Appeal Nos. 13, 14, 15 and 16 of 2020 (Consolidated). It further asserts that the Court cannot invalidate a surcharge at an interlocutory stage and that the Applicant has not met the threshold for the grant of stay.
Issues for Determination
6. Having considered the Motion, the affidavits, the annexures, the Respondent’s response, the Memorandum of Appeal in Civil Appeal No. E043 of 2025, and the judgment in Civil Appeals Nos. 13, 14, 15 and 16 of 2020 (Consolidated), the Court is satisfied that the following issues arise for determination:
1) Whether the challenge to the surcharge and the grounds of appeal in Civil Appeal No. E043 of 2025 are barred by the doctrine of res judicata.
2) Whether the surcharge may be invalidated in the context of this interlocutory Motion.
3) Whether the Applicant has met the threshold for the grant of stay of execution pending appeal.
4) Whether any live issue remains in the appeal and what final orders ought to issue.
Analysis and Determination
1) Whether the appeal and the challenge to the surcharge are barred by res judicata
7. The Memorandum of Appeal raises complaints regarding the effect of general meeting resolutions, the impact of a letter purporting to withdraw the Tribunal proceedings, the propriety or existence of the inquiry that preceded the surcharge, and allegations of selective enforcement. These were precisely the matters placed before the High Court in Civil Appeals Nos. 13, 14, 15 and 16 of 2020 (Consolidated). In that judgment, the Court held that because the appellants had not lodged appeals under Section 74(1) of the Co-operative Societies Act, the surcharge was final and the Tribunal’s role under Section 75(1) was purely ministerial. The Court further held that no general meeting resolution, no internal directive of the society, and no subsequent letter could reopen or vary a surcharge that had already attained statutory finality, and that any contest touching on the propriety of the inquiry or allegations of unequal or selective enforcement was spent, those matters having only been properly approachable through a statutory appeal under Section 74(1).
8. The classical principle in Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 is that res judicata covers not only what was actually decided but “every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”
9. The Supreme Court of Kenya restated this doctrine in John Florence Maritime Services Ltd & Another v Cabinet Secretary for Transport & Infrastructure, Petition No. 17 of 2015, emphasising that res judicata is a substantive jurisdictional bar, applicable across all proceedings, and that once an issue has been determined or ought to have been raised earlier, it cannot be revived.
10. The Court of Appeal, in Mairani & 2 others v Director of Land Adjudication & Settlement & 3 others [2025] KECA 400 (KLR) similarly confirmed that res judicata prohibits not only re-litigation but also attempts to repackage or reframe matters already determined, noting that litigation must come to an end.
11. Applying these principles to the present matter, the issues raised in this appeal were either determined or properly belonged to the subject of the earlier consolidated litigation. The present attempt to revisit them is therefore barred by Section 7 of the Civil Procedure Act. The application and the appeal fall squarely within the doctrine of res judicata.
2) Whether the surcharge may be invalidated through the interlocutory application
12. Once a court determines that a matter is barred under Section 7 of the Civil Procedure Act, its jurisdiction over the dispute is extinguished and it cannot embark upon, or continue with, any further inquiry into the merits. The finding on res judicata is dispositive of both the appeal and the present application. The Court is therefore precluded from interrogating any consequential or ancillary reliefs that presuppose the existence of a live appeal.
13. In the circumstances, the prayer seeking a declaration that the surcharge is invalid does not arise for consideration, for the substratum upon which it rests has already been spent. It is accordingly moot and incapable of attracting further judicial attention.
3) Whether the Applicant has met the threshold for stay of execution
14. For the same reason, the question of stay of execution is equally moot. A finding that the appeal is barred by res judicata means that the appellate jurisdiction of this Court is spent, and no cognisable dispute remains for adjudication. In the absence of a subsisting appeal, there is no subject capable of being preserved or protected through an order of stay. The Court cannot grant interlocutory relief where it has already determined that it lacks jurisdiction over the substantive dispute, for interim orders cannot stand independently of a competent and viable appeal. The prayer for stay is therefore without foundation and does not arise for consideration.
4) Whether any live issue remains for determination in the appeal
15. Having found that all the issues raised in the Memorandum of Appeal were conclusively determined in the consolidated appeals, and that the surcharge dispute cannot be reopened without offending the doctrine of res judicata, it follows that this appeal is wholly spent. The appeal is divested of any substantive content capable of engaging the Court’s appellate jurisdiction, and there is therefore no surviving controversy that warrants adjudication.
Disposition
16. For the foregoing reasons, the Court makes the following orders:
1) The issues raised in this appeal are barred by res judicata under Section 7 of the Civil Procedure Act.
2) The Notice of Motion dated 18th October 2025 is dismissed
3) This appeal is hereby struck out in its entirety for want of a live controversy
4) Costs of both the application and the appeal shall be borne by the Appellant.
'