Brief Background:
1. The Applicants filed Chamber Summons dated 29th October, 2024 initiating Judicial Review proceedings against the Respondent seeking:
i. Spent
ii. That this Honourable court be pleased to grant leave to the ex- parte applicant for the current County Secretary of Nairobi City County to be arrested and be detained in prison for a period not exceeding six months, for contempt of the orders issued by this Honourable court issued on the 13th day of October, 2022 ordering him to satisfy the decree in Nairobi CMCC No. 2260 of 2010 issued on 15th January 2019 and costs subsequently incurred thereto.
iii. That costs of this application be provided for.
2. The court granted the Ex- parte applicant leave on 29th October, 2024 as prayed.
3. This court further directed that the Applicant files and serve the substantive Application together with submissions and the Respondent was also granted leave to file and serve his responses and submissions.
Respondent’s case:
4. The Respondent raised Preliminary Objections dated 28th January, 2025 in response to the Applicant’s Chamber Summons dated 29th October, 2024 .
5. The Respondent’s Objection is based on the grounds that:
1) The present application is barred by the doctrine of res judicata, as the Ex-Parte Applicant has previously filed two similar applications: a Notice of Motion dated 6th December 2022 and a Notice of Motion dated 21st November 2023. Both applications sought similar orders and relied on similar grounds and documents as the current application.
2) The Honourable Court, per Hon. Justice Jairus Ngaah, conclusively dealt with the said applications by delivering two rulings: a Ruling dated 25th September 2023, dismissing the Notice of Motion dated 6th December 2022 and a Ruling dated 7th June 2024, dismissing the Notice of Motion dated 21st November 2023. Consequently, the issues raised in the present application have already been adjudicated and determined,rendering this application an abuse of the court process.
3) The Applicant is improperly attempting to relitigate matters that have already been decided with finality, contrary to Section 7 of the Civil Procedure Act, Cap 21, which bars courts from entertaining issues that have been substantially determined in a previous suit involving the same parties and subject matter.
4) The repeated filing of similar applications is a gross abuse of the judicial process and amounts to vexatious litigation, aimed at harassing the Respondent and unnecessarily burdening the court.
5) The present application does not raise any new or compelling reasons that would justify a re-examination of issues already determined by this Honourable Court.
6) The Ex Parte Applicant is estopped from re-litigating the same issues that have already been determined by this Honourable Court. The Respondent relies on the doctrine of estoppel as provided under the Evidence Act, Cap 80, which prohibits a party from asserting something contrary to what has been established as the truth by previous judicial determinations.
7) The Respondent further relies on the public interest in ensuring the finality of litigation. Allowing the Ex Parte Applicant to repeatedly file similar applications undermines the principle of finality in judicial proceedings and creates unnecessary delays in the administration of justice.
8) This Court lacks jurisdiction to entertain the present application and should dismiss it in limine with costs to the Respondent.
6. The Respondent’s Objection is based on the following grounds:
i. On 13th October 2022, this Honourable Court issued orders in Judicial Review No. E039 of 2021, the specifics of which form the basis of the Ex Parte Applicant’s current application for contempt proceedings.
ii. Subsequently, the Ex Parte Applicant, Irene Wanjiru Njuguna, filed two applications seeking similar reliefs:
a. A Notice of Motion dated 6th December 2022, seeking to enforce the orders of 13th October 2022.
b. A Notice of Motion dated 21st November 2023, again seeking enforcement of the same orders.
iii. Both applications were adjudicated by Hon. Justice Jairus Ngaah:
a. The Ruling of 25th September 2023 dismissed the Notice of Motion dated 6th December 2022.
b. The Ruling of 7th June 2024 dismissed the Notice of Motion dated 21st November 2023.
iv. The current Chamber Summons application dated 29th October 2024 seeks to institute contempt proceedings against the Respondent, relying on the same orders of 13th October 2022 and alleging disobedience by the Respondent, issues substantially similar to those raised in the prior applications.
v. The Respondent contends that the issues raised in the current application were fully determined in the prior rulings, rendering the present application res judicata, an abuse of process, and barred by estoppel.
7. The Respondent canvassed their Notice of Preliminary Objection by way of written submissions dated 4th March, 2025.
8. The Preliminary Objection is grounded on the doctrines of res judicata and estoppel, as well as the principles of finality of litigation and prevention of abuse of court process
9. It invokes Section 7 and 7(4) of the Civil Procedure Act, Cap 21 hereinafter referred to as the Act.
10. It is posited that the doctrine of res judicata under Section 7 of the Act requires four elements to be satisfied:
a) Same Parties: The Ex Parte Applicant, Irene Wanjiru Njuguna, and the Respondent, The County Government of Nairobi, are identical in the current application and the prior applications dated 6th December 2022 and 21st November 2023.
b) Same Subject Matter: All three applications hinge on the enforcement of the court orders issued on 13th October 2022 in Judicial Review No. E039 of 2021. The current Chamber Summons seeks contempt proceedings for alleged disobedience of these orders, reliefs substantially similar to those sought in the prior Notices of Motion, which also aimed to enforce compliance with the same orders.
c) Competent Court: The prior applications were determined by Hon. Justice Jairus Ngaah, a judge of the High Court with jurisdiction over judicial review matters, as was the case here.
d) Final Determination on Merits: The Rulings of 25th September 2023 and 7th June 2024 dismissed the prior applications after full hearings, constituting final determinations on the merits of the Applicant’s claims regarding the enforcement of the 13th October 2022 orders.
9. It is submitted that in the case of John Florence Maritime Services Limited & Another v Cabinet Secretary, Transport and Infrastructure & 3 Others [2021] eKLR, the Supreme Court of Kenya reaffirmed that res judicata applies where the same issue has been determined on its merits by a competent court between the same parties, emphasizing finality in litigation to prevent multiplicity of suits.
10. The Respondent argues that Applicant’s repeated attempts to relitigate the enforcement of the same orders, relying on identical grounds, fall squarely within the ambit of res judicata.
11. It is submitted that by dint Section 120 of the Evidence Act, Cap 80 of Applicant is estopped from contradicting the finality of the prior rulings.
12. Reliance is placed in the case of Dande & 3 Others v Inspector General, National Police Service & 5 Others [2023] KESC 40, where the Supreme Court cautioned against repetitive suits without new and compelling reasons.
13. The Respondent deposes that the current application introduces no novel facts or legal issues beyond those already considered and rejected which contravenes Article 159(2)(b) of the Constitution.
14. The Respondent also relies on the case of Owners of the Motor Vessel Lilian "S" v Caltex Oil (Kenya) Ltd [1989] KLR and contends that Where res judicata and estoppel apply, the court lacks authority to entertain the matter.
Applicant’s case;
15. The Applicant in response to the Preliminary Objection filed written submissions dated 18th March, 2025.
16. It is their submission on the issue of re judicata that the parties in their application are different as the officer who was being accused of contempt of court is the County Secretary of the Respondent herein and at that period of the said applications it was Dr. Jairus Musumba who was then the acting county secretary but the current Nairobi County Secretary (Mr. Godfrey Akumali), reported to his office on 6th August, 2024 after he was appointed in the said position.
17. She further argues that the issue in the instant application seeks to compel the current county secretary of the respondent who was not a party to the other two applications yet by virtue of being appointed as the county secretary, must take up the responsibility of the previous county secretary of the respondent.
18. On the issue of that the doctrine of estoppel it is submitted that the same does not apply in the instant application as the decisions made by court were as against a different person and in this case what will be decided will be as against a different party who is the current county secretary of the Respondent.
19. It is not disputed that there must be finality to litigation however the Applicant argues that the Respondent should pay the decretal sum of money owed to her.
20. It is her case that the Respondent has not denied owing the decretal sum of money and has gone as far stating that the only reason why they have not paid is because the decretal sum had to be considered in the county government annual budget for 2022 and 2023.
21. The Applicant submits that it is in the interest of justice that the Respondent pays her the decretal sum herein and finalize the litigation as it is core of these proceedings.
22. Reliance is placed in the case of Judicial Review Miscellaneous Application No. 44 of 2012 between the Republic vs. The Attorney General & Another ex parte James Alfred Koroso, this Court expressed itself as hereunder:
“…in the present case the ex parte applicant has no other option of realising the fruits of his judgement since he is barred from executing against the Government. Apart from mandamus, he has no option of ensuring that the judgement that he has been awarded is realised. Unless something is done he will forever be left baby sitting his barren decree. This state of affairs cannot be allowed to prevail under our current Constitutional dispensation in light of the provisions of Article 48 of the Constitution which enjoins the State to ensure access to justice for all persons.
Access to justice cannot be said to have been ensured when persons in whose favour judgements have been decreed by courts of competent jurisdiction cannot enjoy the fruits of their judgement due to roadblocks placed on their paths by actions or inactions of public officers. Public offices, it must be remembered are held in trust for the people of Kenya and Public Officers must carry out their duties for the benefit of the people of the Republic of Kenya.
To deny a citizen his/her lawful rights which have been decreed by a Court of competent jurisdiction is, in my view, unacceptable in a democratic society. Public officers must remember that under Article 129 of the Constitution executive authority derives from the people of Kenya and is to be exercised in accordance with the Constitution in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit.”
23. Reliance is also placed in the case of Mukisa Biscuit Manufacturing Co. Ltd –vs.- West End Distributors (1969) EA 696.
24. The Applicant argues that court lacks jurisdiction to entertain the present application and should dismiss it in limine with costs to the respondent.
Analysis and determination:
25. Upon perusing the pleadings filed and exchanged by the parties herein, as well as the submissions of the respective parties and the authorities relied upon, this court finds the following to be the issue for determination;
a) Whether or not the court has jurisdiction to determine this suit.
b) Whether or not the applicant has made out a case for the grant of the orders sought.
c) Who shall bear the costs.
Whether or not the court has jurisdiction to determine this suit.
26. The Supreme Court in the case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR, [36] observed that;
“Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoidoverstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered
therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously
said in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil, (Kenya) Ltd [1989] KLR 1, “jurisdiction is everything. Without it, a court has no power to make one more step”.It is a settled legal proposition that conferment of jurisdiction is a legislative function and it can only be conferred by the Constitution or statute. It cannot be conferred by judicial craft.See Samuel Kamau Macharia & Another v Kenya commercial Bank & 2 Others, SC Application No. 2 of 2011; [2012] eKLR.Nor can parties, by consent confer on a court power it does not
have.”
27.This court has the jurisdiction to determine the suit before it under Article 165 of The Constitution.
28.In the case of Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd[1969]E.A.696 Law J.A states a preliminary objection to be thus:-
“so far as I am aware, a preliminary objection consist of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit”.Sir Charles Newbold, President stated in the same judgment as follows:-
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”.
29.The question whether or not a case is Res judicata or not is a question of law. The same as raised by the Respondent must be determined by this court.
30.The Civil Procedure Act Cap 21, at Section 7 provides 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.
Explanation. —(1) The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.
Explanation. —(2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.
Explanation. —(3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation. —(4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation. —(5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.
Explanation. —(6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
31.The Supreme Court in the case of John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR comprehensively dealt with the different facets making up the doctrine of res judicata when it stated as follows:
[86] … 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.
32.On 13th October 2022, this Honourable Court issued orders in Judicial Review No. E039 of 2021.Subsequently, the Ex Parte Applicant, filed two applications seeking similar reliefs being a Notice of Motion dated 6th December 2022, seeking to enforce the orders of 13th October 2022.She then filed a Notice of Motion dated 21st November 2023, again seeking enforcement of the same orders.
Both applications were adjudicated by Hon. Justice Jairus Ngaah.The Ruling of 25th September 2023 dismissed the Notice of Motion dated 6th December 2022.The Ruling of 7th June 2024 dismissed the Notice of Motion dated 21st November 2023.
33.The application dated 29th October 2024 seeks to institute contempt proceedings against the Respondent, relying on the same orders of 13th October 2022 and alleging disobedience by the Respondent.
34.It is this finding that the Parties in the instant application are the same ones in the ones in the previous applications.The Notice of Preliminary Objection in this suit meets the threshold of what amounts to Res Judicata in that;
a) There is a former order which was final;
b) The order was on merit;
c) The order was rendered by a court having jurisdiction over the subject matter and the parties; and
d) There was between the first and the second action identical parties, subject matter and cause of action.
35.The Applicant is barred by the Doctrine of Res judicata.
Disposition:
36.The Notice of Preliminary objection is allowed.
Order:
The Notice of Preliminary Objection dated 28th January, 2025 is allowed.
1. The Applicants filed Chamber Summons dated 29th October, 2024 initiating Judicial Review proceedings against the Respondent seeking:
i. Spent
ii. That this Honourable court be pleased to grant leave to the ex- parte applicant for the current County Secretary of Nairobi City County to be arrested and be detained in prison for a period not exceeding six months, for contempt of the orders issued by this Honourable court issued on the 13th day of October, 2022 ordering him to satisfy the decree in Nairobi CMCC No. 2260 of 2010 issued on 15th January 2019 and costs subsequently incurred thereto.
iii. That costs of this application be provided for.
2. The court granted the Ex- parte applicant leave on 29th October, 2024 as prayed.
3. This court further directed that the Applicant files and serve the substantive Application together with submissions and the Respondent was also granted leave to file and serve his responses and submissions.
Respondent’s case:
4. The Respondent raised Preliminary Objections dated 28th January, 2025 in response to the Applicant’s Chamber Summons dated 29th October, 2024 .
5. The Respondent’s Objection is based on the grounds that:
1) The present application is barred by the doctrine of res judicata, as the Ex-Parte Applicant has previously filed two similar applications: a Notice of Motion dated 6th December 2022 and a Notice of Motion dated 21st November 2023. Both applications sought similar orders and relied on similar grounds and documents as the current application.
2) The Honourable Court, per Hon. Justice Jairus Ngaah, conclusively dealt with the said applications by delivering two rulings: a Ruling dated 25th September 2023, dismissing the Notice of Motion dated 6th December 2022 and a Ruling dated 7th June 2024, dismissing the Notice of Motion dated 21st November 2023. Consequently, the issues raised in the present application have already been adjudicated and determined,rendering this application an abuse of the court process.
3) The Applicant is improperly attempting to relitigate matters that have already been decided with finality, contrary to Section 7 of the Civil Procedure Act, Cap 21, which bars courts from entertaining issues that have been substantially determined in a previous suit involving the same parties and subject matter.
4) The repeated filing of similar applications is a gross abuse of the judicial process and amounts to vexatious litigation, aimed at harassing the Respondent and unnecessarily burdening the court.
5) The present application does not raise any new or compelling reasons that would justify a re-examination of issues already determined by this Honourable Court.
6) The Ex Parte Applicant is estopped from re-litigating the same issues that have already been determined by this Honourable Court. The Respondent relies on the doctrine of estoppel as provided under the Evidence Act, Cap 80, which prohibits a party from asserting something contrary to what has been established as the truth by previous judicial determinations.
7) The Respondent further relies on the public interest in ensuring the finality of litigation. Allowing the Ex Parte Applicant to repeatedly file similar applications undermines the principle of finality in judicial proceedings and creates unnecessary delays in the administration of justice.
8) This Court lacks jurisdiction to entertain the present application and should dismiss it in limine with costs to the Respondent.
6. The Respondent’s Objection is based on the following grounds:
i. On 13th October 2022, this Honourable Court issued orders in Judicial Review No. E039 of 2021, the specifics of which form the basis of the Ex Parte Applicant’s current application for contempt proceedings.
ii. Subsequently, the Ex Parte Applicant, Irene Wanjiru Njuguna, filed two applications seeking similar reliefs:
a. A Notice of Motion dated 6th December 2022, seeking to enforce the orders of 13th October 2022.
b. A Notice of Motion dated 21st November 2023, again seeking enforcement of the same orders.
iii. Both applications were adjudicated by Hon. Justice Jairus Ngaah:
a. The Ruling of 25th September 2023 dismissed the Notice of Motion dated 6th December 2022.
b. The Ruling of 7th June 2024 dismissed the Notice of Motion dated 21st November 2023.
iv. The current Chamber Summons application dated 29th October 2024 seeks to institute contempt proceedings against the Respondent, relying on the same orders of 13th October 2022 and alleging disobedience by the Respondent, issues substantially similar to those raised in the prior applications.
v. The Respondent contends that the issues raised in the current application were fully determined in the prior rulings, rendering the present application res judicata, an abuse of process, and barred by estoppel.
7. The Respondent canvassed their Notice of Preliminary Objection by way of written submissions dated 4th March, 2025.
8. The Preliminary Objection is grounded on the doctrines of res judicata and estoppel, as well as the principles of finality of litigation and prevention of abuse of court process
9. It invokes Section 7 and 7(4) of the Civil Procedure Act, Cap 21 hereinafter referred to as the Act.
10. It is posited that the doctrine of res judicata under Section 7 of the Act requires four elements to be satisfied:
a) Same Parties: The Ex Parte Applicant, Irene Wanjiru Njuguna, and the Respondent, The County Government of Nairobi, are identical in the current application and the prior applications dated 6th December 2022 and 21st November 2023.
b) Same Subject Matter: All three applications hinge on the enforcement of the court orders issued on 13th October 2022 in Judicial Review No. E039 of 2021. The current Chamber Summons seeks contempt proceedings for alleged disobedience of these orders, reliefs substantially similar to those sought in the prior Notices of Motion, which also aimed to enforce compliance with the same orders.
c) Competent Court: The prior applications were determined by Hon. Justice Jairus Ngaah, a judge of the High Court with jurisdiction over judicial review matters, as was the case here.
d) Final Determination on Merits: The Rulings of 25th September 2023 and 7th June 2024 dismissed the prior applications after full hearings, constituting final determinations on the merits of the Applicant’s claims regarding the enforcement of the 13th October 2022 orders.
9. It is submitted that in the case of John Florence Maritime Services Limited & Another v Cabinet Secretary, Transport and Infrastructure & 3 Others [2021] eKLR, the Supreme Court of Kenya reaffirmed that res judicata applies where the same issue has been determined on its merits by a competent court between the same parties, emphasizing finality in litigation to prevent multiplicity of suits.
10. The Respondent argues that Applicant’s repeated attempts to relitigate the enforcement of the same orders, relying on identical grounds, fall squarely within the ambit of res judicata.
11. It is submitted that by dint Section 120 of the Evidence Act, Cap 80 of Applicant is estopped from contradicting the finality of the prior rulings.
12. Reliance is placed in the case of Dande & 3 Others v Inspector General, National Police Service & 5 Others [2023] KESC 40, where the Supreme Court cautioned against repetitive suits without new and compelling reasons.
13. The Respondent deposes that the current application introduces no novel facts or legal issues beyond those already considered and rejected which contravenes Article 159(2)(b) of the Constitution.
14. The Respondent also relies on the case of Owners of the Motor Vessel Lilian "S" v Caltex Oil (Kenya) Ltd [1989] KLR and contends that Where res judicata and estoppel apply, the court lacks authority to entertain the matter.
Applicant’s case;
15. The Applicant in response to the Preliminary Objection filed written submissions dated 18th March, 2025.
16. It is their submission on the issue of re judicata that the parties in their application are different as the officer who was being accused of contempt of court is the County Secretary of the Respondent herein and at that period of the said applications it was Dr. Jairus Musumba who was then the acting county secretary but the current Nairobi County Secretary (Mr. Godfrey Akumali), reported to his office on 6th August, 2024 after he was appointed in the said position.
17. She further argues that the issue in the instant application seeks to compel the current county secretary of the respondent who was not a party to the other two applications yet by virtue of being appointed as the county secretary, must take up the responsibility of the previous county secretary of the respondent.
18. On the issue of that the doctrine of estoppel it is submitted that the same does not apply in the instant application as the decisions made by court were as against a different person and in this case what will be decided will be as against a different party who is the current county secretary of the Respondent.
19. It is not disputed that there must be finality to litigation however the Applicant argues that the Respondent should pay the decretal sum of money owed to her.
20. It is her case that the Respondent has not denied owing the decretal sum of money and has gone as far stating that the only reason why they have not paid is because the decretal sum had to be considered in the county government annual budget for 2022 and 2023.
21. The Applicant submits that it is in the interest of justice that the Respondent pays her the decretal sum herein and finalize the litigation as it is core of these proceedings.
22. Reliance is placed in the case of Judicial Review Miscellaneous Application No. 44 of 2012 between the Republic vs. The Attorney General & Another ex parte James Alfred Koroso, this Court expressed itself as hereunder:
“…in the present case the ex parte applicant has no other option of realising the fruits of his judgement since he is barred from executing against the Government. Apart from mandamus, he has no option of ensuring that the judgement that he has been awarded is realised. Unless something is done he will forever be left baby sitting his barren decree. This state of affairs cannot be allowed to prevail under our current Constitutional dispensation in light of the provisions of Article 48 of the Constitution which enjoins the State to ensure access to justice for all persons.
Access to justice cannot be said to have been ensured when persons in whose favour judgements have been decreed by courts of competent jurisdiction cannot enjoy the fruits of their judgement due to roadblocks placed on their paths by actions or inactions of public officers. Public offices, it must be remembered are held in trust for the people of Kenya and Public Officers must carry out their duties for the benefit of the people of the Republic of Kenya.
To deny a citizen his/her lawful rights which have been decreed by a Court of competent jurisdiction is, in my view, unacceptable in a democratic society. Public officers must remember that under Article 129 of the Constitution executive authority derives from the people of Kenya and is to be exercised in accordance with the Constitution in a manner compatible with the principle of service to the people of Kenya, and for their well-being and benefit.”
23. Reliance is also placed in the case of Mukisa Biscuit Manufacturing Co. Ltd –vs.- West End Distributors (1969) EA 696.
24. The Applicant argues that court lacks jurisdiction to entertain the present application and should dismiss it in limine with costs to the respondent.
Analysis and determination:
25. Upon perusing the pleadings filed and exchanged by the parties herein, as well as the submissions of the respective parties and the authorities relied upon, this court finds the following to be the issue for determination;
a) Whether or not the court has jurisdiction to determine this suit.
b) Whether or not the applicant has made out a case for the grant of the orders sought.
c) Who shall bear the costs.
Whether or not the court has jurisdiction to determine this suit.
26. The Supreme Court in the case of Dickson Ngigi Ngugi v Commissioner of Lands S.C Petition No. 9 of 2019 [2019] eKLR, [36] observed that;
“Jurisdiction goes to the root of any cause or dispute before a court of law. A court must exercise restraint to avoidoverstepping its constitutional role in order to maintain its legitimacy. If a court has no jurisdiction, a judgment rendered
therein does not adjudicate the dispute. It does not bind the parties, nor can it be made the foundation of any right. It is a nullity without life or authority. In short, it is coram non judice and amounts to a nullity because, as Nyarangi, JA famously
said in the locus classicus, Owners of the Motor Vessel “Lillian S” v Caltex Oil, (Kenya) Ltd [1989] KLR 1, “jurisdiction is everything. Without it, a court has no power to make one more step”.It is a settled legal proposition that conferment of jurisdiction is a legislative function and it can only be conferred by the Constitution or statute. It cannot be conferred by judicial craft.See Samuel Kamau Macharia & Another v Kenya commercial Bank & 2 Others, SC Application No. 2 of 2011; [2012] eKLR.Nor can parties, by consent confer on a court power it does not
have.”
27.This court has the jurisdiction to determine the suit before it under Article 165 of The Constitution.
28.In the case of Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd[1969]E.A.696 Law J.A states a preliminary objection to be thus:-
“so far as I am aware, a preliminary objection consist of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit”.Sir Charles Newbold, President stated in the same judgment as follows:-
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”.
29.The question whether or not a case is Res judicata or not is a question of law. The same as raised by the Respondent must be determined by this court.
30.The Civil Procedure Act Cap 21, at Section 7 provides 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.
Explanation. —(1) The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.
Explanation. —(2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.
Explanation. —(3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation. —(4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation. —(5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.
Explanation. —(6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
31.The Supreme Court in the case of John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others [2021] eKLR comprehensively dealt with the different facets making up the doctrine of res judicata when it stated as follows:
[86] … 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.
32.On 13th October 2022, this Honourable Court issued orders in Judicial Review No. E039 of 2021.Subsequently, the Ex Parte Applicant, filed two applications seeking similar reliefs being a Notice of Motion dated 6th December 2022, seeking to enforce the orders of 13th October 2022.She then filed a Notice of Motion dated 21st November 2023, again seeking enforcement of the same orders.
Both applications were adjudicated by Hon. Justice Jairus Ngaah.The Ruling of 25th September 2023 dismissed the Notice of Motion dated 6th December 2022.The Ruling of 7th June 2024 dismissed the Notice of Motion dated 21st November 2023.
33.The application dated 29th October 2024 seeks to institute contempt proceedings against the Respondent, relying on the same orders of 13th October 2022 and alleging disobedience by the Respondent.
34.It is this finding that the Parties in the instant application are the same ones in the ones in the previous applications.The Notice of Preliminary Objection in this suit meets the threshold of what amounts to Res Judicata in that;
a) There is a former order which was final;
b) The order was on merit;
c) The order was rendered by a court having jurisdiction over the subject matter and the parties; and
d) There was between the first and the second action identical parties, subject matter and cause of action.
35.The Applicant is barred by the Doctrine of Res judicata.
Disposition:
36.The Notice of Preliminary objection is allowed.
Order:
The Notice of Preliminary Objection dated 28th January, 2025 is allowed.