A.Introduction:
1. Before this Court for ruling is the Notice of Motion dated 20th May 2026, and Notice of Preliminary Objection dated 17th June 2026.
2. The Appellant's Application is brought pursuant to Sections 1A, 1B, 3, 3A, 79B, 79C and 100 of the Civil Procure Act, Order 45 Rule of the Civil Procedure Amendment Rules and other relevant laws for orders as follows: -
“1. The Application herein be certified urgent and heard ex-parte in the first instance in priority to any other proceedings herein.
2. The court be pleased to order a stay of execution in VOI CMCC NO 155 OF 2015, the subject of this appeal, pending the hearing and final determination of this application between parties.
3. The court be pleased to admit the appeal herein for hearing.
4. The court be pleased to make order and/or directions for the amending of the proceedings and record of this cause to expunge all previous proceedings herein as being erroneous and irregularly taken and, in particular.
a. the court record of 15th March 2024 be amended by expunging the entirety thereof or, in the alternative by deleting the word “case” in the order/directions of the court and replacing the same with the word “application”.
b. the proceedings and the court record relating to the Notice of Motion dated 5th February 2026 and Ruling on 31st March 2026 be amended by wholly expunging the same OR in the alternative deleting the words “This file shall be marked as closed” in the Ruling of the Court made and delivered on that date.
5. The court be pleased to order a stay of execution in VOI CMCC NO 155 OF 2015, the subject of this appeal, pending the hearing and final determination of this appeal.
6. The court be pleased to make such other or further directions as may be necessary in the circumstances.
7. THAT the costs of this Application be provided for.”
3. The Application is supported by the affidavit of John Mwasi Ngala sworn on 20.5.2026 and grounds on its face of even date.
4. The Applicant contended that he has an arguable appeal pending hearing and determination that has chances of success and likely to suffer irreparable loss should the application be disallowed. The Applicant averred that his right to a fair hearing shall be abused and violated if the application is not allowed. The applicant urged vide the further affidavit dated 11.7.2026 that the application is not vexatious, abusive of court process, resjudicata and warrants being allowed with costs.
5. The Respondent in opposition to the Application filed a Notice of Preliminary Objection and Replying Affidavit dated 17.6.2026 and 1.7.2026 respectively urging the court to strike out or dismiss the motion dated 20.5.2026 on grounds that the issues raised in the present Application have already been directly and substantially determined in previous proceedings between the same parties and in particular the Notice of Motion dated 5th February 2026 .The Respondent urged that the present application is resjudicata, an abuse of court process that warrants dismissal with costs. The Respondent averred that the Appellant is silently seeking a review of the court’s ruling dated 31.3.2026 contrary to the applicable legal procedure and finality to litigation principle. The Respondent contended further that entertaining the Application would cause unnecessary delay, increase costs, waste judicial resources, and undermine certainty of judicial determinations.
B. Directions of the Court:
6.The court by consent of the parties directed that the application and preliminary objection be canvassed at ago by way of written submissions to which the parties complied on the 3.8.2026 and 6.8. 2026.The Court has carefully considered the written submissions, cited decided authorities and affidavit evidence on record thereby identified the following issues for determination.
1. Whether the suit is barred by the doctrine of res judicata
2. Whether the Application is an abuse of due process of the court.
3. Whether this Court has jurisdiction to amend the court proceedings and ruling dated 31.3.2026.
4. Whether there is an appeal pending hearing and determination.
5. Whether the court is functus officio.
6. Whether the preliminary objection is merited.
7. Who should bear the costs of the Application?
C. Analysis and determination:
9.Article 159 of the constitution of Kenya 2010 provides for judicial authority that must be exercised judiciously as restated in several decided cases inclusive of case of Shah vs Mbogo (1968) EA. This court has to ascertain whether it is seized of jurisdiction to entertain and grant the orders/reliefs sought for by Applicant/Appellant in the notice of motion dated 20.5.2026. The Court of Appeal in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) stated that jurisdiction is everything and without it a court downs its tools.
10. It is also trite that Jurisdiction of a court is derived from the constitution, statute or precedents as reaffirmed by the supreme court in the case of Samuel Kamau Macharia & Another v. KCB Ltd & 2 others, application no. 2 of 2011(2012)eklr . The Preliminary objection dated 17.6.2026 raises issues of resjudicata, abuse of court process, want of jurisdiction of the court to entertain the motion dated 20.5. 2026.It is the duty of the court to ascertain whether the preliminary objection has met the threshold laid out in the case of mukhisa biscuits ltd vs westend distributors 1969) EA being that it discloses a point of law arising from the pleadings and should resolve the case without a full trial.
11. It is on record the Applicant filed an application dated 5.2.2026 for setting aside the order dated 15.3.2024 that dismissed the matter for want of prosecution. The Application was dismissed on 31.3.2026 with costs to the Respondent and marked the matter as closed. The Applicant expressed his dissatisfaction to the ruling by filing the Application dated 20,5,2026 thereby calling upon the court to make amends to the wordings in the order dated 15.3.2024 as follows;
“ The court record of 15th March 2024 be amended by expunging the entirety thereof or, in the alternative by deleting the word “case” in the order/directions of the court and replacing the same with the word “application”.
And
order dated 31.3.2026 as follows: “the proceedings and the court record relating to the Notice of Motion dated 5th February 2026 and Ruling on 31st March 2026 be amended by wholly expunging the same OR in the alternative deleting the words “This file shall be marked as closed” in the Ruling of the Court made and delivered on that date”
12.The Ruling/directions of the learned Judge dated 15.3.2024 remains in force to date pursuant to the ruling of My Brother Hon Justice Wabwotto dated 31.3.2026. This court is of concurrent jurisdiction to the previous courts that dealt with the matter on 15.3.2024 and 31.3.2026. The best approach for unsuccessful party who called for review and or setting aside a judgment or order issued by a trial court is to appeal such decision at the Appellate Court and not calling for review indirectly before this court as per the motion dated 20.5.2026.
13.The Applicant has called upon this court to amend the record by expunging in entirety the ruling dated 31.3.2026 or delete the words the file shall be marked as closed in the alternative. Amendment of pleadings, order or judgment is permitted under section 99 and 100 of the civil Procedure Act 2010 on grounds of Clerical or arithmetical mistakes apparent on the face of the record. The Applicant has not shown the apparent clerical or arithmetic errors on the face of the orders dated 15.3.2024 or 31.3.2026 to warrant review or deletion of the same out of the court record. The court clothed with jurisdiction to alter or amend the ruling and/or orders dated 15.3.2024 and 31.3.2026 is the Court of Appeal, not this court. In the circumstances this court finds it has no jurisdiction to grant the orders /reliefs sought for by the Applicant.
D. Whether the suit is barred by the doctrine of res judicata and constitutes an abuse of the court process:.
14.The doctrine of res judicata is anchored in section 7 of the Civil Procedure Act, Cap 21 which provides: -
“ 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. ”
15.The Court of Appeal in Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd (Civil Appeal 107 of 2010) [2017] KECA 98 (KLR) while citing Mulla, Procedure Code Act of 1908 16 th Edition stipulated that “ . The elements of res judicata have been held to be conjunctive rather than disjunctive. As such, the elements reproduced below must all be present before a suit or an issue is deemed res judicata on account of a former suit”
1. The suit or issue was directly and substantially in issue in the former suit.
2. That former suit was between the same parties or parties under whom they or any of them claim.
3. Those parties were litigating under the same title.
4. The issue was heard and finally determined in the former suit.
5. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”
16.The Respondent is inviting this court to interrogate the Application dated 05.02.2026 and 20.05.2026 in terms of parties to the suit/application subject matter involved, determination of the application and jurisdiction of the court that determined the applications. It is undisputed that the parties were the same, litigating under the same title, over the same subject land being plot No 57 (measuring 2.5 acres).
17.The Application dated 5 February 2026 sought, inter alia, stay of the warrants of arrest and an extension of time within which to lodge an appeal out of time. The present Application, however, seeks a stay of execution of the judgment of the lower court, admission of the appeal for hearing and determination and amendment of the ruling dated 31.3.2026 and wordings of the trial judge dated 15/3/2024. As stated above that it is the court of appeal that can interfere with the ruling dated 31.3.2026 or order dated 15.3.2024 and Hon Justice Wabwoto being clothed with jurisdiction having entertained the matter and substantially dealt with the issues raised in the application dated 5.2.2026 touching on the order dated 15.3.2024. this court cannot relitigate over the same issue noting that the order marking the file as closed is in force.
18.The Applicant avers that there is an appeal pending hearing and determination which should be admitted for hearing hence the necessity to stay execution of judgment of Hon Obura (Cm) in Voi MCELC No 155/ 2015 in the interest of upholding substantive justice to parties. The Appeal pending hearing and determination or admission for hearing was the purpose for which this appeal was filed in court by the Appellant at Appellate division in Mombasa vide Appeal Number El CALA/E012/2023 and the matter was dismissed for want of prosecution on the 15.3.2024 which order remains in force to date. The Applicant’s filing of a certificate of delay after determination of the application dated 5.2.2026 does not validate an appeal filed out of time.
19.The framing of the Application dated 20.05.2026 introduces new issues for determination. The Supreme Court in the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another Motion No 42 of 2014 [2016] eKLR the court stipulated:-
“ 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 in the rationale that issues decided may not be reopened and has little to do with the merit of the decision.”
57. The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313, as follows: … w here a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time” [emphasis supplied].
58. Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question ; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, [2010] eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision.
59. That Courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle was judicially remarked in E.T v. Attorney-General & Another, (2012) eKLR, thus: “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 v. 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 v. 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… ”
20. It is therefore settled that parties are not at liberty to re-litigate matters arising from the same subject of litigation save in exceptional circumstances recognized by law as restated by The Supreme Court in John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39. The Applicant filed the certificate of delay vide the further affidavit dated 11.7.2026 and averred that there is an appeal pending hearing and determination hence the judgment of the trial court should stayed till the appeal is heard. However, the Appellant neither demonstrated why the Certificate of delay was not produced earlier nor provided any sufficient explanation for its previous omission. No exceptional circumstances have been placed before this court to warrant relitigating over the issues already determined by courts of competent jurisdiction. The court finds that the motion dated 20.5.2026 is res judicata.
E.Whether the application amounts to an abuse of court process:
21. As to whether the application amounts to an abuse of the court process Justice Mativo as He then was stated in Gandhi v Director of Public Prosecutions & 3 others [2018] KEHC 6100 (KLR) regarding the abuse of court processes: -
“23. The situation that may give rise to an abuse of court process is indeed in exhaustive; it involves situations where the process of court has not been or resorted to fairly, properly, honestly to the detriment of the other party. However, abuse of court process in addition to the above arises in the following situations: -
1. Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action .
2. Instituting different actions between the same parties simultaneously in different court even though on different grounds.
3. Where two similar processes are used in respect of the exercise of the same right for example a cross appeal and respondent notice.
4. Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by court below.
5. Where there no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.[13]
6. Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.
7. Where an appellant files an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal.
8. Where two actions are commenced, the second asking for a relief which may have been obtained in the first. An abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the irritation or annoyance of an opponent.[14]
24. In the words of Oputa J.SC (as he then was)[15] abuse of judicial process is:-
“ A term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexations and oppressive. In his words abuse of process can also mean abuse of legal procedure or improper use of the legal process.”
25. Justice Niki Tobi JSC observed: -“that abuse of court process creates a factual scenario where appellants are pursuing the same matter by two court processes. In other words, the appellants by the two-court process were involved in some gamble a game of chance to get the best in the judicial process.’’
26. It’s settled law that a litigant has no right to purse paripasua two processes which will have the same effect in two courts either at the same time or at different times with a view of obtaining victory in one of the process or in both. Litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different position clearly, plainly and without tricks.”
22.It is not in dispute that the Applicant filed the certificate of delay after the filing of application dated 5.2.2026 determined on 31.3.31.3. 2026.It is equally on record that the appeal allegedly pending hearing and determination on record was filed out of time without leave of the court which amounts to an abuse of court process. Furthermore, dismissal of the suit order dated 15.3.2024 is in force hence the appeal allegedly pending hearing and determination can only be readmitted for hearing and determination upon setting aside the orders dated 15.3.3034 and 31.3.2026 by the court of appeal and not this court. the court in its ruling dated 31.3.2026 observed as follows “ Additionally, the Appellant’s assertion that the earlier ELCA proceedings were “fictitious” remains bare and unsupported by any official certification from the court registry confirming that the matter was never registered or heard. In the circumstances I find the application dated 20.5.2026 as an abuse of court process.
F. Whether the court is functus officio:
23. As to whether the court is functus officio the Court of Appeal in Telcom Kenya Ltd vs John Ochanda (suing on is behalf and on behalf of 996 former employees of Telcom Kenya Ltd. (2014) eKLR stated that
“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon.
The general rule that the final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch. D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions.”
24.The doctrine of functus officio was restated by the supreme court in Patrick Nyaga & another v Sanitam Services (E.A) Limited [2021] KEHC 6926 (KLR)as follows: -
“11. The Supreme Court of Kenya in Samuel Kamau Macharia & Another v. KCB Ltd & 2 others, application no. 2 of 2011 held that “A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, it is not one of mere procedural technicality; it goes to the very heart of the matter; for without jurisdiction, the court cannot entertain any proceedings.”
12. The question therefore that must be answered is whether this court is in order to hear the application or it is functus officio? The doctrine of functus officio was well stated by the Court of Appeal in Telcom Kenya Ltd vs John Ochanda (suing on is behalf and on behalf of 996 former employees of Telcom Kenya Ltd. (2014) eKLR that
“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon.
The general rule that the final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch. D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions.”
13. The doctrine therefore does not bar a court from entertaining a case it has already decided but it so barred from revisiting the matter in a merit-based re-engagement with the case once final judgment has been entered and a decree issued, meaning procedural interlocutory applications only.”
25.Further, the Supreme Court of Kenya in Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others (2013) eKLR , stipulates: -
“The functus officio doctrine is one of the mechanisms by which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.
26.From the cited cases above the doctrine of functus officio emphasizes on finality to litigation. Having noted that the orders dated 15.3.2024 and 31.3.2026 were issued by courts of competent jurisdiction and in force to date this court cannot relitigate over issues already litigated by courts of competent jurisdiction hence functus officio.
G.Who to pay costs of the application :
27.It is trite that a successful party to a suit/application is entitled to costs pursuant to section 27 of the Civil Procedure Act,2010 though the court has discretion to award costs or not depending on circumstances of each case. In the interests of justice, the Court directs that the Appellant/Applicant shall bear the costs of the Application dated 20.5.2026.
H. Final Orders:
28.Accordingly, the Court finds and orders as follows: -
1. The Application dated 20th May 2026 is not merit hence dismissed.
2. The Preliminary objection dated 17.06.2026 is merited and allowed.
3. The costs of the Application awarded to the Respondent.
It is so ordered accordingly.
DATED, SIGNED AND DELIVERED ON THIS 16TH DAY OF SEPTEMBER 2026(16.9.2026) AT VOI IN THE PRESENCE OF:
MR. JUMA FOR THE APPLICANT.
DAVID -COURT ASSISTANT
BUT ABSENCE OF Mr. MWINZI FOR THE RESPONDENT .
BY J.A. ORWA(JUDGE).
1. Before this Court for ruling is the Notice of Motion dated 20th May 2026, and Notice of Preliminary Objection dated 17th June 2026.
2. The Appellant's Application is brought pursuant to Sections 1A, 1B, 3, 3A, 79B, 79C and 100 of the Civil Procure Act, Order 45 Rule of the Civil Procedure Amendment Rules and other relevant laws for orders as follows: -
“1. The Application herein be certified urgent and heard ex-parte in the first instance in priority to any other proceedings herein.
2. The court be pleased to order a stay of execution in VOI CMCC NO 155 OF 2015, the subject of this appeal, pending the hearing and final determination of this application between parties.
3. The court be pleased to admit the appeal herein for hearing.
4. The court be pleased to make order and/or directions for the amending of the proceedings and record of this cause to expunge all previous proceedings herein as being erroneous and irregularly taken and, in particular.
a. the court record of 15th March 2024 be amended by expunging the entirety thereof or, in the alternative by deleting the word “case” in the order/directions of the court and replacing the same with the word “application”.
b. the proceedings and the court record relating to the Notice of Motion dated 5th February 2026 and Ruling on 31st March 2026 be amended by wholly expunging the same OR in the alternative deleting the words “This file shall be marked as closed” in the Ruling of the Court made and delivered on that date.
5. The court be pleased to order a stay of execution in VOI CMCC NO 155 OF 2015, the subject of this appeal, pending the hearing and final determination of this appeal.
6. The court be pleased to make such other or further directions as may be necessary in the circumstances.
7. THAT the costs of this Application be provided for.”
3. The Application is supported by the affidavit of John Mwasi Ngala sworn on 20.5.2026 and grounds on its face of even date.
4. The Applicant contended that he has an arguable appeal pending hearing and determination that has chances of success and likely to suffer irreparable loss should the application be disallowed. The Applicant averred that his right to a fair hearing shall be abused and violated if the application is not allowed. The applicant urged vide the further affidavit dated 11.7.2026 that the application is not vexatious, abusive of court process, resjudicata and warrants being allowed with costs.
5. The Respondent in opposition to the Application filed a Notice of Preliminary Objection and Replying Affidavit dated 17.6.2026 and 1.7.2026 respectively urging the court to strike out or dismiss the motion dated 20.5.2026 on grounds that the issues raised in the present Application have already been directly and substantially determined in previous proceedings between the same parties and in particular the Notice of Motion dated 5th February 2026 .The Respondent urged that the present application is resjudicata, an abuse of court process that warrants dismissal with costs. The Respondent averred that the Appellant is silently seeking a review of the court’s ruling dated 31.3.2026 contrary to the applicable legal procedure and finality to litigation principle. The Respondent contended further that entertaining the Application would cause unnecessary delay, increase costs, waste judicial resources, and undermine certainty of judicial determinations.
B. Directions of the Court:
6.The court by consent of the parties directed that the application and preliminary objection be canvassed at ago by way of written submissions to which the parties complied on the 3.8.2026 and 6.8. 2026.The Court has carefully considered the written submissions, cited decided authorities and affidavit evidence on record thereby identified the following issues for determination.
1. Whether the suit is barred by the doctrine of res judicata
2. Whether the Application is an abuse of due process of the court.
3. Whether this Court has jurisdiction to amend the court proceedings and ruling dated 31.3.2026.
4. Whether there is an appeal pending hearing and determination.
5. Whether the court is functus officio.
6. Whether the preliminary objection is merited.
7. Who should bear the costs of the Application?
C. Analysis and determination:
9.Article 159 of the constitution of Kenya 2010 provides for judicial authority that must be exercised judiciously as restated in several decided cases inclusive of case of Shah vs Mbogo (1968) EA. This court has to ascertain whether it is seized of jurisdiction to entertain and grant the orders/reliefs sought for by Applicant/Appellant in the notice of motion dated 20.5.2026. The Court of Appeal in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) stated that jurisdiction is everything and without it a court downs its tools.
10. It is also trite that Jurisdiction of a court is derived from the constitution, statute or precedents as reaffirmed by the supreme court in the case of Samuel Kamau Macharia & Another v. KCB Ltd & 2 others, application no. 2 of 2011(2012)eklr . The Preliminary objection dated 17.6.2026 raises issues of resjudicata, abuse of court process, want of jurisdiction of the court to entertain the motion dated 20.5. 2026.It is the duty of the court to ascertain whether the preliminary objection has met the threshold laid out in the case of mukhisa biscuits ltd vs westend distributors 1969) EA being that it discloses a point of law arising from the pleadings and should resolve the case without a full trial.
11. It is on record the Applicant filed an application dated 5.2.2026 for setting aside the order dated 15.3.2024 that dismissed the matter for want of prosecution. The Application was dismissed on 31.3.2026 with costs to the Respondent and marked the matter as closed. The Applicant expressed his dissatisfaction to the ruling by filing the Application dated 20,5,2026 thereby calling upon the court to make amends to the wordings in the order dated 15.3.2024 as follows;
“ The court record of 15th March 2024 be amended by expunging the entirety thereof or, in the alternative by deleting the word “case” in the order/directions of the court and replacing the same with the word “application”.
And
order dated 31.3.2026 as follows: “the proceedings and the court record relating to the Notice of Motion dated 5th February 2026 and Ruling on 31st March 2026 be amended by wholly expunging the same OR in the alternative deleting the words “This file shall be marked as closed” in the Ruling of the Court made and delivered on that date”
12.The Ruling/directions of the learned Judge dated 15.3.2024 remains in force to date pursuant to the ruling of My Brother Hon Justice Wabwotto dated 31.3.2026. This court is of concurrent jurisdiction to the previous courts that dealt with the matter on 15.3.2024 and 31.3.2026. The best approach for unsuccessful party who called for review and or setting aside a judgment or order issued by a trial court is to appeal such decision at the Appellate Court and not calling for review indirectly before this court as per the motion dated 20.5.2026.
13.The Applicant has called upon this court to amend the record by expunging in entirety the ruling dated 31.3.2026 or delete the words the file shall be marked as closed in the alternative. Amendment of pleadings, order or judgment is permitted under section 99 and 100 of the civil Procedure Act 2010 on grounds of Clerical or arithmetical mistakes apparent on the face of the record. The Applicant has not shown the apparent clerical or arithmetic errors on the face of the orders dated 15.3.2024 or 31.3.2026 to warrant review or deletion of the same out of the court record. The court clothed with jurisdiction to alter or amend the ruling and/or orders dated 15.3.2024 and 31.3.2026 is the Court of Appeal, not this court. In the circumstances this court finds it has no jurisdiction to grant the orders /reliefs sought for by the Applicant.
D. Whether the suit is barred by the doctrine of res judicata and constitutes an abuse of the court process:.
14.The doctrine of res judicata is anchored in section 7 of the Civil Procedure Act, Cap 21 which provides: -
“ 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. ”
15.The Court of Appeal in Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd (Civil Appeal 107 of 2010) [2017] KECA 98 (KLR) while citing Mulla, Procedure Code Act of 1908 16 th Edition stipulated that “ . The elements of res judicata have been held to be conjunctive rather than disjunctive. As such, the elements reproduced below must all be present before a suit or an issue is deemed res judicata on account of a former suit”
1. The suit or issue was directly and substantially in issue in the former suit.
2. That former suit was between the same parties or parties under whom they or any of them claim.
3. Those parties were litigating under the same title.
4. The issue was heard and finally determined in the former suit.
5. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”
16.The Respondent is inviting this court to interrogate the Application dated 05.02.2026 and 20.05.2026 in terms of parties to the suit/application subject matter involved, determination of the application and jurisdiction of the court that determined the applications. It is undisputed that the parties were the same, litigating under the same title, over the same subject land being plot No 57 (measuring 2.5 acres).
17.The Application dated 5 February 2026 sought, inter alia, stay of the warrants of arrest and an extension of time within which to lodge an appeal out of time. The present Application, however, seeks a stay of execution of the judgment of the lower court, admission of the appeal for hearing and determination and amendment of the ruling dated 31.3.2026 and wordings of the trial judge dated 15/3/2024. As stated above that it is the court of appeal that can interfere with the ruling dated 31.3.2026 or order dated 15.3.2024 and Hon Justice Wabwoto being clothed with jurisdiction having entertained the matter and substantially dealt with the issues raised in the application dated 5.2.2026 touching on the order dated 15.3.2024. this court cannot relitigate over the same issue noting that the order marking the file as closed is in force.
18.The Applicant avers that there is an appeal pending hearing and determination which should be admitted for hearing hence the necessity to stay execution of judgment of Hon Obura (Cm) in Voi MCELC No 155/ 2015 in the interest of upholding substantive justice to parties. The Appeal pending hearing and determination or admission for hearing was the purpose for which this appeal was filed in court by the Appellant at Appellate division in Mombasa vide Appeal Number El CALA/E012/2023 and the matter was dismissed for want of prosecution on the 15.3.2024 which order remains in force to date. The Applicant’s filing of a certificate of delay after determination of the application dated 5.2.2026 does not validate an appeal filed out of time.
19.The framing of the Application dated 20.05.2026 introduces new issues for determination. The Supreme Court in the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another Motion No 42 of 2014 [2016] eKLR the court stipulated:-
“ 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 in the rationale that issues decided may not be reopened and has little to do with the merit of the decision.”
57. The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313, as follows: … w here a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time” [emphasis supplied].
58. Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question ; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, [2010] eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision.
59. That Courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle was judicially remarked in E.T v. Attorney-General & Another, (2012) eKLR, thus: “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 v. 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 v. 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… ”
20. It is therefore settled that parties are not at liberty to re-litigate matters arising from the same subject of litigation save in exceptional circumstances recognized by law as restated by The Supreme Court in John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39. The Applicant filed the certificate of delay vide the further affidavit dated 11.7.2026 and averred that there is an appeal pending hearing and determination hence the judgment of the trial court should stayed till the appeal is heard. However, the Appellant neither demonstrated why the Certificate of delay was not produced earlier nor provided any sufficient explanation for its previous omission. No exceptional circumstances have been placed before this court to warrant relitigating over the issues already determined by courts of competent jurisdiction. The court finds that the motion dated 20.5.2026 is res judicata.
E.Whether the application amounts to an abuse of court process:
21. As to whether the application amounts to an abuse of the court process Justice Mativo as He then was stated in Gandhi v Director of Public Prosecutions & 3 others [2018] KEHC 6100 (KLR) regarding the abuse of court processes: -
“23. The situation that may give rise to an abuse of court process is indeed in exhaustive; it involves situations where the process of court has not been or resorted to fairly, properly, honestly to the detriment of the other party. However, abuse of court process in addition to the above arises in the following situations: -
1. Instituting a multiplicity of actions on the same subject matter, against the same opponent, on the same issues or multiplicity of actions on the same matter between the same parties even where there exists a right to begin the action .
2. Instituting different actions between the same parties simultaneously in different court even though on different grounds.
3. Where two similar processes are used in respect of the exercise of the same right for example a cross appeal and respondent notice.
4. Where an application for adjournment is sought by a party to an action to bring another application to court for leave to raise issue of fact already decided by court below.
5. Where there no iota of law supporting a court process or where it is premised on recklessness. The abuse in this instance lies in the inconvenience and inequalities involved in the aims and purposes of the action.[13]
6. Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.
7. Where an appellant files an application at the trial court in respect of a matter which is already subject of an earlier application by the respondent at the Court of Appeal.
8. Where two actions are commenced, the second asking for a relief which may have been obtained in the first. An abuse may also involve some bias, malice or desire to misuse or pervert the course of justice or judicial process to the irritation or annoyance of an opponent.[14]
24. In the words of Oputa J.SC (as he then was)[15] abuse of judicial process is:-
“ A term generally applied to a proceeding which is wanting in bona fides and is frivolous, vexations and oppressive. In his words abuse of process can also mean abuse of legal procedure or improper use of the legal process.”
25. Justice Niki Tobi JSC observed: -“that abuse of court process creates a factual scenario where appellants are pursuing the same matter by two court processes. In other words, the appellants by the two-court process were involved in some gamble a game of chance to get the best in the judicial process.’’
26. It’s settled law that a litigant has no right to purse paripasua two processes which will have the same effect in two courts either at the same time or at different times with a view of obtaining victory in one of the process or in both. Litigation is not a game of chess where players outsmart themselves by dexterity of purpose and traps. On the contrary, litigation is a contest by judicial process where the parties place on the table of justice their different position clearly, plainly and without tricks.”
22.It is not in dispute that the Applicant filed the certificate of delay after the filing of application dated 5.2.2026 determined on 31.3.31.3. 2026.It is equally on record that the appeal allegedly pending hearing and determination on record was filed out of time without leave of the court which amounts to an abuse of court process. Furthermore, dismissal of the suit order dated 15.3.2024 is in force hence the appeal allegedly pending hearing and determination can only be readmitted for hearing and determination upon setting aside the orders dated 15.3.3034 and 31.3.2026 by the court of appeal and not this court. the court in its ruling dated 31.3.2026 observed as follows “ Additionally, the Appellant’s assertion that the earlier ELCA proceedings were “fictitious” remains bare and unsupported by any official certification from the court registry confirming that the matter was never registered or heard. In the circumstances I find the application dated 20.5.2026 as an abuse of court process.
F. Whether the court is functus officio:
23. As to whether the court is functus officio the Court of Appeal in Telcom Kenya Ltd vs John Ochanda (suing on is behalf and on behalf of 996 former employees of Telcom Kenya Ltd. (2014) eKLR stated that
“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon.
The general rule that the final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch. D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions.”
24.The doctrine of functus officio was restated by the supreme court in Patrick Nyaga & another v Sanitam Services (E.A) Limited [2021] KEHC 6926 (KLR)as follows: -
“11. The Supreme Court of Kenya in Samuel Kamau Macharia & Another v. KCB Ltd & 2 others, application no. 2 of 2011 held that “A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, it is not one of mere procedural technicality; it goes to the very heart of the matter; for without jurisdiction, the court cannot entertain any proceedings.”
12. The question therefore that must be answered is whether this court is in order to hear the application or it is functus officio? The doctrine of functus officio was well stated by the Court of Appeal in Telcom Kenya Ltd vs John Ochanda (suing on is behalf and on behalf of 996 former employees of Telcom Kenya Ltd. (2014) eKLR that
“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon.
The general rule that the final decision of a court cannot be re-opened derives from the decision of the English Court of Appeal in re-St Nazarire Co, (1879), 12 Ch. D 88. The basis for it was that the power to rehear was transferred by the Judicature Acts of the appellate division. The rule applied only after the formal judgment had been drawn up, issued and entered, and was subject to two exceptions.”
13. The doctrine therefore does not bar a court from entertaining a case it has already decided but it so barred from revisiting the matter in a merit-based re-engagement with the case once final judgment has been entered and a decree issued, meaning procedural interlocutory applications only.”
25.Further, the Supreme Court of Kenya in Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others (2013) eKLR , stipulates: -
“The functus officio doctrine is one of the mechanisms by which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.
26.From the cited cases above the doctrine of functus officio emphasizes on finality to litigation. Having noted that the orders dated 15.3.2024 and 31.3.2026 were issued by courts of competent jurisdiction and in force to date this court cannot relitigate over issues already litigated by courts of competent jurisdiction hence functus officio.
G.Who to pay costs of the application :
27.It is trite that a successful party to a suit/application is entitled to costs pursuant to section 27 of the Civil Procedure Act,2010 though the court has discretion to award costs or not depending on circumstances of each case. In the interests of justice, the Court directs that the Appellant/Applicant shall bear the costs of the Application dated 20.5.2026.
H. Final Orders:
28.Accordingly, the Court finds and orders as follows: -
1. The Application dated 20th May 2026 is not merit hence dismissed.
2. The Preliminary objection dated 17.06.2026 is merited and allowed.
3. The costs of the Application awarded to the Respondent.
It is so ordered accordingly.
DATED, SIGNED AND DELIVERED ON THIS 16TH DAY OF SEPTEMBER 2026(16.9.2026) AT VOI IN THE PRESENCE OF:
MR. JUMA FOR THE APPLICANT.
DAVID -COURT ASSISTANT
BUT ABSENCE OF Mr. MWINZI FOR THE RESPONDENT .
BY J.A. ORWA(JUDGE).