' [1] The Notice of Motion dated 15th July 2024 was filed by the ex parte applicant, Dnow LP Uganda Limited, under Sections 1A, 1B and 3A of the Civil Procedure Act as well as Order 53 Rule 3 of the Civil Procedure Rules, 2010 for the following orders:
[a] That the ex parte applicant be granted judicial review orders of Mandamus compelling the 1st respondent to forthwith and without delay release to the ex parte applicant all goods that have complied with all lawful customs procedures being the consignment under the Bills of Lading Numbers:
[i] COSU8039489780 (in containers numbers CSLU6065486/CR797786, OOCU7587415/CR797784 and UETU5371264/CR797777);
[ii] COSU8039490550 (in container number FSCU5012580/CS900426);
[iii] COSU8039491020 (in containers numbers TLLU2654054/CR797783 and OOLU0254569/CS192917)
[b] That the ex parte applicant be granted judicial review order of Mandamus compelling the 2nd respondent to deliver to the ex parte applicant the consignment under the following Bills of Lading to the final destination, being Kitende, Kajiansi, Entebbe, Kampala Uganda:
[i] COSU8039489780 (in containers numbers CSLU6065486/CR797786, OOCU7587415/CR797784 and UETU5371264/CR797777);
[ii] COSU8039490550 (in container number FSCU5012580/CS900426);
[iii] COSU8039491020 (in containers numbers TLLU2654054/CR797783 and OOLU0254569/CS192917)
[c] That costs be awarded to the ex parte applicant.
[2] The application was premised on the grounds that the ex parte applicant (hereinafter, “the applicant”) is a limited liability company incorporated in the Republic of Uganda; and that it is the consignee of the goods contained in 5 containers, namely:
[i] OOCU7587415/CR797784
[ii] UETU5371264/CR797777)
[iii] FSCU5012580/CS900426)
[iv] TLLU2654054/CR797783)
[v] OOLU0254569/CS192917)
[3] The applicant further deposed that it is in possession of all the legal documents pertaining to the said consignments, including the original Bills of Lading for the consignments. It further averred that contrary to its lawful duties, the 1st respondent held the applicant’s consignments over allegations of fraud, which allegations the 1st respondent has failed to disclose or accord the applicant an opportunity to be heard in respect thereof. The applicant contended that the 1st respondent’s acts purport to deprive it and other importers of the opportunity to lawfully imported goods through the port of Mombasa.
[4] The applicant also deposed that it has not been given any valid legal basis or grounds for the 1st respondent to hold the consignments; and therefore the acts complained amount to abuse of power within the Wednesbury’s principle. The applicant contended that the 1st respondent’s acts are ultra vires its powers and statutory functions; and therefore that it is in the interest of justice that the orders sought be granted.
[5] The grounds aforestated were explicated in the affidavit of Moses Bashaija, one of the directors of the applicant.
[6] The 1st respondent opposed the application vide the Replying Affidavit sworn by Stephen Kyandih on 26th July 2024. The 1st respondent averred that this suit is res judicata, in that it was the subject of Nairobi Milimani High Court Commercial Case No. E341 of 2023 (hereinafter, “the Nairobi case”) . The 1st respondent stated that on the 23rd October 2023, an order was given in the Nairobi suit directing that the subject consignments be re-shipped to China; after which the file was marked as closed.
[7] The 2nd respondent relied on the Replying Affidavit sworn on 25th July 2024 by its Customer Service Manager, Khalila Ahmed . The 2nd respondent took the position that it is a stranger to the applicant’s allegations. The 2nd respondent averred, at paragraph 5 of its affidavit that the consignments were re-exported by the shippers appointed forwarder pursuant to the order issued on 18th October 2023 by Justice Aleem Visram in High Court Commercial Case No. E341 of 2023: Nanjing Bioagriland Crop Care Co. Ltd v Dnow LP Ltd & 4 others . The 2nd respondent attached a copy of the formal order extracted in the Nairobi case as Annexure “KA 1”.
[8] The application was canvassed by way of written submissions pursuant to the directions given herein on 25th July 2024. The 1st respondent filed written submission dated 13th August 2024 in which it proposed the following two issues for determination:
[a] Whether the matter is res judicata ; and,
[b] Whether the application ought to be dismissed.
[9] It basically set out the background of the dispute and relied on Section 7 of the Civil Procedure Act as well as the cases of Peter Mbogo Njogu v Joyce Wambui Njogu & another [2005] eKLR and HCCC No. 2340 of 1991: Mwangi Njangu v Meshack Mbogo Wambugu & another (Unreported) to buttress the submission that litigation must come to an end. The 1st respondent urged the Court to find that the two suits involve the same parties, the same subject matter, the same cause of action and the same remedies. Accordingly, the 1st respondent urged for the dismissal of the application with costs.
[10] From the record, it is manifest that neither the applicant nor the 2nd respondent filed any written submissions. I have nevertheless considered the application, the grounds set out in the affidavits filed herein by the parties as well as the 1st respondent’s written submissions. Before engaging in a merit consideration of the application dated 15th July 2024, it is imperative to consider the preliminary issue raised by the 1st respondent as to whether this suit is res judicata.
[11] Section 7 of the Civil Procedure Act states as follows in peremptory terms:
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue 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.”
[12] As pointed out herein above, the respondents averred that the consignments forming the subject matter of the instant Judicial Review Application were the subject matter of Nairobi Milimani High Court Commercial Case No. E341 of 2023. They produced as annexures to their respective Replying Affidavits copies of the order made in the Nairobi case. In addition, the 1st respondent exhibited a copy of the proceedings in the Nairobi case. Those documents confirm that the Nairobi case was in respect of Bill of Lading Nos. COSU8039489780, COSU8039490550 and COSU8039491020 in respect of containers numbers:
[i] OOCU7587415/CR797784
[ii] UETU5371264/CR797777)
[iii] FSCU5012580/CS900426)
[iv] TLLU2654054/CR797783)
[v] OOLU0254569/CS192917)
[13] The documents further confirm that an order was made to the effect that the goods in the above containers be immediately released to the custody of the plaintiff, Nanjing Bioagriland Crop Care Co. Ltd and reshipped to the Port of Origin or a destination of the plaintiff’s choice to avoid escalation of demurrage charges, warehouse rent and customs charges. The court further ordered the interested parties in that suit who included the respondents herein to facilitate the observance of the order. The said Order was extracted and issued on 23rd October 2023.
[14] In Bernard Mugo Ndegwa v James Nderitu Githae and 2 Others [2010] eKLR the Court distilled the applicable considerations to be as follows:
[a] The matter in issue must be identical in both suits.
[b] The parties in the suit must be substantially the same.
[c] There is concurrence of jurisdiction of the Court.
[d] That the subject matter is the same and finally,
[e] That there is a final determination as far as the previous decision is concerned.
[15] In the premises, it is manifest that a final decision was taken on the subject consignments; and therefore that it was not open for the applicant to bring another similar application in respect of the same subject matter and the same facts as they purported to do herein. Indeed, the Court of Appeal made the point in Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR thus:
“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common-sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”
[16] Accordingly, I agree entirely with the position taken by Hon. Majanja, J. in E.T. v Attorney General [2012] eKLR that:
“The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi Vs National Bank of Kenya Limited and Others (2001) EA 177 the court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the court quoted Kuloba J., in the case of Njangu Vs Wambugu and another Nairobi HCCC No.2340 of 1991 (unreported) where 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 case some cosmetic face lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…”
[17] The doctrine not only applies to suits but also to applications of a similar nature, whether in the same suit or not. Thus, in Uhuru Highway Development Ltd v Central Bank of Kenya & 2 Others, Civil Appeal No. 36 of 1996, the Court of Appeal held:
"There is not one case cited to show that an application in a suit once decided by courts of competent jurisdiction can be filed once again for rehearing. This shows only one intention on the part of the legislature in India and our Civil Procedure Act. That is to say, there must be an end to applications of a similar nature; that is to say further, wider principles of res judicata apply to applications within the suit. If that was not the intention, we can imagine that the courts could and would be inundated by new applications filed after the original one was dismissed. There must be an end to interlocutory applications as much as there ought to be an end to litigation..."
[18] In the circumstances, the application dated 15th July 2024 is untenable. The same is hereby dismissed with costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 16TH DAY OF SEPTEMBER 2025
'
[a] That the ex parte applicant be granted judicial review orders of Mandamus compelling the 1st respondent to forthwith and without delay release to the ex parte applicant all goods that have complied with all lawful customs procedures being the consignment under the Bills of Lading Numbers:
[i] COSU8039489780 (in containers numbers CSLU6065486/CR797786, OOCU7587415/CR797784 and UETU5371264/CR797777);
[ii] COSU8039490550 (in container number FSCU5012580/CS900426);
[iii] COSU8039491020 (in containers numbers TLLU2654054/CR797783 and OOLU0254569/CS192917)
[b] That the ex parte applicant be granted judicial review order of Mandamus compelling the 2nd respondent to deliver to the ex parte applicant the consignment under the following Bills of Lading to the final destination, being Kitende, Kajiansi, Entebbe, Kampala Uganda:
[i] COSU8039489780 (in containers numbers CSLU6065486/CR797786, OOCU7587415/CR797784 and UETU5371264/CR797777);
[ii] COSU8039490550 (in container number FSCU5012580/CS900426);
[iii] COSU8039491020 (in containers numbers TLLU2654054/CR797783 and OOLU0254569/CS192917)
[c] That costs be awarded to the ex parte applicant.
[2] The application was premised on the grounds that the ex parte applicant (hereinafter, “the applicant”) is a limited liability company incorporated in the Republic of Uganda; and that it is the consignee of the goods contained in 5 containers, namely:
[i] OOCU7587415/CR797784
[ii] UETU5371264/CR797777)
[iii] FSCU5012580/CS900426)
[iv] TLLU2654054/CR797783)
[v] OOLU0254569/CS192917)
[3] The applicant further deposed that it is in possession of all the legal documents pertaining to the said consignments, including the original Bills of Lading for the consignments. It further averred that contrary to its lawful duties, the 1st respondent held the applicant’s consignments over allegations of fraud, which allegations the 1st respondent has failed to disclose or accord the applicant an opportunity to be heard in respect thereof. The applicant contended that the 1st respondent’s acts purport to deprive it and other importers of the opportunity to lawfully imported goods through the port of Mombasa.
[4] The applicant also deposed that it has not been given any valid legal basis or grounds for the 1st respondent to hold the consignments; and therefore the acts complained amount to abuse of power within the Wednesbury’s principle. The applicant contended that the 1st respondent’s acts are ultra vires its powers and statutory functions; and therefore that it is in the interest of justice that the orders sought be granted.
[5] The grounds aforestated were explicated in the affidavit of Moses Bashaija, one of the directors of the applicant.
[6] The 1st respondent opposed the application vide the Replying Affidavit sworn by Stephen Kyandih on 26th July 2024. The 1st respondent averred that this suit is res judicata, in that it was the subject of Nairobi Milimani High Court Commercial Case No. E341 of 2023 (hereinafter, “the Nairobi case”) . The 1st respondent stated that on the 23rd October 2023, an order was given in the Nairobi suit directing that the subject consignments be re-shipped to China; after which the file was marked as closed.
[7] The 2nd respondent relied on the Replying Affidavit sworn on 25th July 2024 by its Customer Service Manager, Khalila Ahmed . The 2nd respondent took the position that it is a stranger to the applicant’s allegations. The 2nd respondent averred, at paragraph 5 of its affidavit that the consignments were re-exported by the shippers appointed forwarder pursuant to the order issued on 18th October 2023 by Justice Aleem Visram in High Court Commercial Case No. E341 of 2023: Nanjing Bioagriland Crop Care Co. Ltd v Dnow LP Ltd & 4 others . The 2nd respondent attached a copy of the formal order extracted in the Nairobi case as Annexure “KA 1”.
[8] The application was canvassed by way of written submissions pursuant to the directions given herein on 25th July 2024. The 1st respondent filed written submission dated 13th August 2024 in which it proposed the following two issues for determination:
[a] Whether the matter is res judicata ; and,
[b] Whether the application ought to be dismissed.
[9] It basically set out the background of the dispute and relied on Section 7 of the Civil Procedure Act as well as the cases of Peter Mbogo Njogu v Joyce Wambui Njogu & another [2005] eKLR and HCCC No. 2340 of 1991: Mwangi Njangu v Meshack Mbogo Wambugu & another (Unreported) to buttress the submission that litigation must come to an end. The 1st respondent urged the Court to find that the two suits involve the same parties, the same subject matter, the same cause of action and the same remedies. Accordingly, the 1st respondent urged for the dismissal of the application with costs.
[10] From the record, it is manifest that neither the applicant nor the 2nd respondent filed any written submissions. I have nevertheless considered the application, the grounds set out in the affidavits filed herein by the parties as well as the 1st respondent’s written submissions. Before engaging in a merit consideration of the application dated 15th July 2024, it is imperative to consider the preliminary issue raised by the 1st respondent as to whether this suit is res judicata.
[11] Section 7 of the Civil Procedure Act states as follows in peremptory terms:
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue 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.”
[12] As pointed out herein above, the respondents averred that the consignments forming the subject matter of the instant Judicial Review Application were the subject matter of Nairobi Milimani High Court Commercial Case No. E341 of 2023. They produced as annexures to their respective Replying Affidavits copies of the order made in the Nairobi case. In addition, the 1st respondent exhibited a copy of the proceedings in the Nairobi case. Those documents confirm that the Nairobi case was in respect of Bill of Lading Nos. COSU8039489780, COSU8039490550 and COSU8039491020 in respect of containers numbers:
[i] OOCU7587415/CR797784
[ii] UETU5371264/CR797777)
[iii] FSCU5012580/CS900426)
[iv] TLLU2654054/CR797783)
[v] OOLU0254569/CS192917)
[13] The documents further confirm that an order was made to the effect that the goods in the above containers be immediately released to the custody of the plaintiff, Nanjing Bioagriland Crop Care Co. Ltd and reshipped to the Port of Origin or a destination of the plaintiff’s choice to avoid escalation of demurrage charges, warehouse rent and customs charges. The court further ordered the interested parties in that suit who included the respondents herein to facilitate the observance of the order. The said Order was extracted and issued on 23rd October 2023.
[14] In Bernard Mugo Ndegwa v James Nderitu Githae and 2 Others [2010] eKLR the Court distilled the applicable considerations to be as follows:
[a] The matter in issue must be identical in both suits.
[b] The parties in the suit must be substantially the same.
[c] There is concurrence of jurisdiction of the Court.
[d] That the subject matter is the same and finally,
[e] That there is a final determination as far as the previous decision is concerned.
[15] In the premises, it is manifest that a final decision was taken on the subject consignments; and therefore that it was not open for the applicant to bring another similar application in respect of the same subject matter and the same facts as they purported to do herein. Indeed, the Court of Appeal made the point in Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR thus:
“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common-sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”
[16] Accordingly, I agree entirely with the position taken by Hon. Majanja, J. in E.T. v Attorney General [2012] eKLR that:
“The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi Vs National Bank of Kenya Limited and Others (2001) EA 177 the court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the court quoted Kuloba J., in the case of Njangu Vs Wambugu and another Nairobi HCCC No.2340 of 1991 (unreported) where 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 case some cosmetic face lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…”
[17] The doctrine not only applies to suits but also to applications of a similar nature, whether in the same suit or not. Thus, in Uhuru Highway Development Ltd v Central Bank of Kenya & 2 Others, Civil Appeal No. 36 of 1996, the Court of Appeal held:
"There is not one case cited to show that an application in a suit once decided by courts of competent jurisdiction can be filed once again for rehearing. This shows only one intention on the part of the legislature in India and our Civil Procedure Act. That is to say, there must be an end to applications of a similar nature; that is to say further, wider principles of res judicata apply to applications within the suit. If that was not the intention, we can imagine that the courts could and would be inundated by new applications filed after the original one was dismissed. There must be an end to interlocutory applications as much as there ought to be an end to litigation..."
[18] In the circumstances, the application dated 15th July 2024 is untenable. The same is hereby dismissed with costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 16TH DAY OF SEPTEMBER 2025
'