REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
CIVIL CASE NO. E012 OF 2025
JUMA OMAR MWANGALA (suing as the Chairperson,
Kenya Association of Private Employment Agencies
(KAPEA)...................................................................................................................PLAINTIFF
VERSUS
VINCENT OMBATI MBAKA........................................1 st DEFENDANT/RESPONDENT
VIRGINIA NJOKI MUTIGI...............................................2 ND DEFENDANT/APPLICANT
ADAN KALA ALI............................................................3 RD DEFENDANT/RESPONDENT
AND
REGISTRAR OF SOCIETIES..............................................................INTERESTED PARTY
RULING
1. There are wrangles over the leadership and management of the Kenya Association of Private Employment Agencies (KAPEA). The plaintiff/applicant claims that he is the duly elected chairperson of the said association but the 1 st defendant/respondent is impersonating the chairperson and appearing at various functions and events and presenting himself as the chairperson while the 2 nd and 3 rd defendants, having been respectively elected as Secretary and Treasurer of the Association on 13 th March 2023 were subsequently expelled as members of the association on 13 th September 2024.
2. The plaintiff Juma Omar Mwangala instituted suit against the 1 st defendant as the only defendant through a plaint dated 22 nd September 2025. He at the same time filed an application of the same date under certificate of urgency seeking orders that:
a. an injunction be issued restraining the 1 st defendant, his associates, servants and or agents from impersonating the chairperson, Kenya Association of Private Employment Agencies (KAPEA) pending the hearing and determination of the application.
b. a declaration that the Plaintiff is the duly elected and bona fide chairperson, Kenya Association of Private Employment Agencies (KAPEA).
c. costs of the application be provided for.
3. The 1 st defendant was served with court process but failed to enter appearance or respond to the application. When the application came up on 29 th October 2025 for directions to confirm filing of a response and submissions and to fix a date for ruling, learned counsel Mr. Kubo, appeared for the defendant/respondent and informed the court that they had been instructed the previous day. They had however not been mapped in the Judiciary Case Tracking System (CTS) or e-filing platform and therefore they could not file any document including a notice of appointment of advoactes. Learned counsel requested for fourteen days to enable the defendant/respondent to file a response and that was granted.
4. When the matter came up next on 17 th December 2025, there was no appearance for the respondent. Learned counsel for the applicant informed the court that no response had been served upon them either by the respondent or the Interested Party.
5. In the absence of a response to the application, the court allowed the application in terms that a temporary injunction do issue restraining the defendant, his associates, servants or any person acting under him from impersonating the chairperson of KAPEA pending hearing and determination of the suit.
6. On 9 th April 2026, the firm of Mutanu & Co. Advocates filed a Notice of Appointment of Advocates dated 27 th March 2026 to appear for the plaintiff who had hitherto been respresented by NJeru & Company Advocates.
7. The plaint was amended through an application dated 8 th April 2026 and filed in court on 10 th April 2026 seeking the following orders:
a. to join Virginia Njoki Murigi and Adan Kala Ali as the 2 nd Defendant and the 3 rd Defendants respectively in the suit:
b. leave be granted to the Plaintiff/Applicant to amend the Plaint and all accompanying pleadings to reflect the joinder of the intended Defendants and to include all relevant facts and reliefs.
c. the Amended Plaint annexed thereto be deemed as duly filed upon payment of requisite court fees.
d. pending and upon the hearing and determination of the application inter partes , an order of temporary injunction be issued restraining the 1 st Defendant/Respondent, the Intended 2 nd Defendant (Virginia Njoki Murigi) and the Intended 3 rd Defendant (Adan Kala Ali) their agents, servants, proxies or any person acting under them from holding themselves out as officials of KAPEA, acting as chairperson, secretary, treasurer or any official capacity, representing KAPEA before Government, Embassies, media, or public bodies and or convening meetings or elections in the name of KAPEA.
e. pending the hearing and determination of the suit, a temporary injunction be issued in the same terms as prayer (d) above.
f. the court to declare that the purported elections and/or meeting held on 24 th April 2025 are null and void ab initio .
g. An order be issued that status quo be maintained recognizing the Plaintiff as the lawful Chairperson of KAPEA pending the hearing and determination of this suit.
h. costs of the application be provided for.
8. The court on 13 th April 2026 issued directions on the disposal of this application and fixed it for further directions for 22 nd April 2026.
9. When the matter came up on 22 nd April 2026 learned counsel for the plaintiff/applicant informed the court that the application had been duly served and there was no response thereto. The court granted the application and directed that the amended plaint be served within 21 days. The matter was fixed for pre-trial on 10 th June 2026.
10. On 6 th May 2026, learned counsel for the 2 nd defendant Virginia Njoki Mutigi filed a Notice of Appointment of Advocates by Quincy, Jesse, Kiptoo & Associates dated 30 th April 2026, but erroneously referred to the 2 nd defendant as the 4 th defendant because the title appearances of the defendants and Interested Party were mixed up in the heading.
11. On 20 th May 2026, the 2 nd defendant Virginai Murigi filed a Notice of Motion seeking orders that:
a. The court to set aside, vacate and/or discharge the orders issued on 22 nd April, 2026 specifically orders 4, 5, 6 and 7 arising from the plaintiff’s application dated 8 th April, 2026.
b. The court to order the cross-examination of the process server, one Duncan Ken, on his affidavit of service sworn on 14 th April, 2026.
c. The said process server does produce before the court his certificate of appointment and licensing documents.
d. Pending the hearing and determination of the application, the court to stay and/or suspend the operation and enforcement of the orders 4, 5, 6 and 7 issued on 22 nd April, 2026.
e. The court to strike out and/or dismiss the main suit for want of jurisdiction.
f. The court to strike out the suit herein for being res judicata and an abuse of the court process.
g. In the alternative and without prejudice to the foregoing, the court to transfer the suit to the High Court at Nairobi for hearing and determination, KAPEA being headquartered and operating from Nairobi and the cause of action substantially arising within Nairobi County.
h. Costs of the application and the suit be provided for.
12. Directions on the hearing of the application were issued and the application was fixed for compliance on 10 th June 2026, the same date the court had fixed the matter for pre-trial of the main suit.
13. On 3 rd June 2026, the plaintiff filed a replying affidavit to the 2 nd defendant’s application dated 19 th May 2026.
14. On 8 th June 2026, the plaintiff filed an application for contempt of court against the 1 st and 2 nd defendants alleging that they had disobeyed the court orders issued on 22 nd April 2026.
15. On 10 th June 2026 there were appearances by learned counsels as follows: for the plaintiff, Ms Njuguna; for the 1 st defendant, Mr. Kubo and the 2 nd defendant, Mr. Kiptoo. There was no appearance for the 3 rd defendant and the Interested Party. Learned counsel Mr. Kubo informed the court that he had challenges being mapped to the CTS as he was informed by registry staff that there were challenges with power at Kwale Law Courts. The court confirmed that indeed there had been such power challenges in the past two weeks. Learned counsel said that he had however since been mapped and filed his notice of appointment of advocates for the 1 st defendant dated 9 th June 2026.
16. Learned counsel Mr. Kubo for the 1 st defendant informed the court that the 1 st defendant wished to file a notice of preliminary objection to the plaintiff’s suit on grounds that the plaintiff had filed multiple suits in various courts on the same subject matter. Further that the 1 st defendant had never been served with the application for joinder and amendment of plaint dated 8 th April 2026 which was the same application that had necessitated the orders granted on 22 nd April 2026. He had only been served with the application for contempt of court.
17. Learned counsel for the 2 nd defendant/respondent Mr. Kiptoo pointed out some irregularities in the plaintiff filing and withdrawing an amended plaint and then filing another amended plaint instead of a further amended plaint.
18. The court gave directions that the issue that needed immediate disposal was whether or not the defendants had been served with the application dated 8 th April 2026 and therefore whether the ensuing orders issued on 22 nd April 2026 were regular or not. Therefore, the 2 nd respondent’s application dated 19 th May 2026 is the one that comes up for determination.
19. The application is brought under Articles 47, 50 and 159 of the Constitution of Kenya, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Order 10 Rule 11, Order 40 Rule 7, Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law.
20. The grounds in support of the application are laid out on the face thereof and reproduced below and expounded in the supporting affidavit of Virginia Njoki Murigi, sworn on 19 th May 2026. They are that:
a. the orders issued on 22 nd April, 2026 were obtained ex parte through material nondisclosure, procedural impropriety and want of service and the 2 nd Defendant/Applicant was never served with the Plaintiff’s application dated 8 th April, 2026 despite adverse and far-reaching orders being sought against her. Further that the affidavit of service sworn by Duncan Ken on 14 th April, 2026 is manifestly defective, evasive and incapable of proving proper service as there is no evidence of proper WhatsApp service, confirmation of delivery, identification of the alleged telephone number or verification linking the number to the 2 nd Defendant/Applicant.
b. the impugned orders are final in nature and effectively determine substantive issues in the suit at an interlocutory stage. The orders have paralysed the operations of KAPEA by restraining duly elected officials from discharging constitutional mandates.
c. the disputes herein concern the internal affairs, elections and officials of a registered society, matters falling primarily within the statutory mandate of the Registrar of Societies. The Plaintiff has not exhausted the dispute resolution mechanisms provided under the Societies Act before invoking this Court’s jurisdiction. The High Court exercises appellate jurisdiction in disputes arising from decisions of the Registrar of Societies and no such appeal exists herein.
d. the Plaintiff is guilty of forum shopping, multiplicity of suits and material non-disclosure. Further that the issues raised herein are materially res judicata in view of previously instituted suits including:
i. Mombasa MCCC E1489 of 2024 was decided in similar terms as Mombasa MCCC No. E1506 of 2024 below;
ii. Mombasa MCCC E1506 of 2024; In this matter, I have looked at the ruling of the Magistrate’s Court at Mombasa delivered on 28 th May 2025 and I note that the court found that it had no jurisdiction to hear and determine the issues raised and the same ought to be handled by the Registrar of Societies and any appeal arising therefrom be made to the High Court. In that case, the issues cannot be said to be res judicata as they were not heard and determined with finality.
iii. Mombasa MCCC E430 of 2025. What is annexed is an order at the ex-parte stage on a certificate of urgency whereat on 23 rd April 2025, the court issued an order stopping elections of the associations officials scheduled for 24 th April 2025. It would appear that the application had been filed by the 2 nd respondent herein. However, on 24 th April 2025, the court vacated its order stopping elections and directed that the matter be handled by the court that was handling the series of matters in the files.
e. the Plaintiff voluntarily declined to participate in the elections held on 24 th April, 2025 despite being duly invited. The elections complained of were supervised and conducted with the involvement of the National Employment Authority (NEA) and have previously received judicial recognition.
f. the continued subsistence of the impugned orders is gravely prejudicial to the operations, governance and financial affairs of KAPEA and therefore it is in the interest of justice that the orders be vacated and the suit struck out.
21. In her supporting affidavit, Virginia Njoki, the 2 nd respondent deposes that she is the duly elected Secretary General of KAPEA through elections held on 24 th April 2025 and she had previously served in the same capacity. She has attached to the affidavit a copy of the said election results and ensuing minutes dated 24 th April 2025 signed by the Secretary General showing who the elected officials were. Further that the plaintiff is the former chairman of the association. He was invited to take part in the said elections but voluntarily chose to abandon and abscond the electoral process. The plaintiff had prior to and after the said elections filed multiple suits against other officials of the association which touch on similar issues as the ones herein.
22. She deposes that she was never served with the application dated 8 th April 2026 in her personal capacity or as Secretary General of KAPEA. That she was only served with the orders on 14 th May 2026. She deposes that the affidavit of service sworn by Duncan Ken on 14 th April 2026 was false and misleading and the mobile phone number purportedly used to serve her by Whatsapp was never identified, verified or linked to her.
23. The applicant deposes that the association has its headquarters in Nairobi from where all its affairs are conducted and therefore the suit herein should have been filed in Nairobi.
24. On jurisdiction, the applicant deposes that under the Socities Act (Cap. 108) Laws of Kenya, the dispute herein should first have been filed with the Registrar of Societies and only come to the High Court on appeal, which is not the case herein. The plaintiff therefore failed to exhaust the statutory mechanisms provided.
25. The applicant deposes further that the orders issued herein restraining her from carrying out constitutional functions of the office of Secretary General are final in nature yet issued at an interlocutory stage and they have paralysed the operations of the association.
26. The application is opposed by the plaintiff Juma Omar Mwangala through the replying affidavit sworn on 3 rd June 2026. He deposes that the application lacks merit and the same should be dismissed.
27. He desposes that the 2 nd defendant was duly served with the application dated 8 th April 2026 as per the affidavit of service sworn by Duncan Ken on 14 th April 2026.
28. He deposes that under the constitution of KAPEA, Article 6 clause 6.2(b), 6.2(c), and Article 7 clauses 7.4.1 and 7.4.4 and Article 10 clause 10.2 the 2 nd defendant was not qualified to be a member and therefore leader of the association because according to the records maintained by the National Employment Authority Management System (NEAMS), Satmar Technology Limited, the company through which the 2 nd defendant/applicant herein, Virginia Njoki Murigi purported to use in order to qualify for membership and leadership within KAPEA, is not an accredited recruitment agencу. Consequently, she ceased to qualify for membership and leadership within KAPEÀ and lacks the necessary locus standi to purport to act on behalf of KAPEA. He has annexed to his affidavit the constitution of KAPEA and copies of the relevant NEAMS records.
29. He deposes further that the 2 nd and 3 rd defendants were expelled from the association through resolutions and executive orders which were duly served upon them on 17 th February 2025 and they have never challenged their said expulsion and therefore ceased to be lawful members and officials of KAPEA. Further that correspondence and records relating to the 2 nd and 3 rd defendants’ misconduct and expulsion were duly forwarded to the Registrar of Societies.
30. The plaintiff deposes that the elections held on 24 th April 2025 whereby certain persons were elected into office including the defendants herein were unconstitutional, irregular, unlawful and void ab initio for various reasons which he has enumerated. Further that the Registrar of Societies has not approved the results of the purported elections.
31. The plaintiff despoes that he is the duly elected National Chairperson of KAPEA with a substantial number of KAPEA members residing within Kwale County and the Coast Region and as such, the Association's operational headquarters are situated at the Waqf Building, 1 st Floor Mombasa. The Association's last lawful elections were conducted in Mombasa on 13 th March 2023 and the Association's records are principally maintained in Mombasa County. Mombasa and Kwale remain the most convenient and appropriate fora for the determination of the dispute herein and the proposed transfer of the matter to Nairobi is misconceived and prejudicial to the Association and its members.
32. The plaintiff deposes that applicant’s plea of res judicata is misconceived and untrue. He points out that the applicant herein previously instituted Mombasa CMCC No. MCC/E430/2025 against the respondent and obtained injunctive orders restraining the convening and holding of KAPEA AGM/elections pending hearing and determination of the suit. The applicant cannot therefore approbate and reprobate by simultaneously asserting before another court that lawful elections were subsequently conducted on 24 th April 2025 while the dispute regarding the legality of such processes remained active before a competent court. The said conduct is contradictory, misleading, an abuse of the court process and renders the alleged elections disputed, irregular and incapable of conferring legitimacy.
33. Further on the applicant’s plea of res judicata , the matters previously relied upon by the applicant were either struck out, dismissed for want of jurisdiction, or were never substantively heard and determined on merits by a court of competent jurisdiction, and therefore do not satisfy the legal threshold for the application of the doctrine of res judicata under Section 7 of the Civil Procedure Act and the applicant is therefore improperly invoking the doctrine of res judicata in an attempt to evade judicial scrutiny regarding continuing acts of impersonation, contempt of court and unlawful interference with the affairs of ΚΑΡΕΑ. Further that the plaintiff is aware that a previous High Court matter was dismissed upon a finding that certain issues overlapped with Mombasa CMCC MCC/E430/2025.
34. Learned counsels for the parties filed submissions on the application. The same are considered in the analysis that follows.
35. Learned counsel for the applicant submits the following issues for determination:
a. Whether the orders dated 22 nd April 2026 should be set aside, discharged and/or vacated for want of service?
b. Whether the suit herein is res judicata and res sub judice ?
c. Whether this court has subject matter and territorial jurisdiction?
36. Learned counsel for the plaintiff/respondent submitted that the only issue for determination is whether the orders of this court issued on 22 nd April 2026 should be set aside.
37. I do not find the issue of subject matter and territorial jurisdiction to carry weight for determination. Under Article 165(3) of the constitution, the High Court is conferred with unlimited original jurisdiction in criminal and civil matters save for matters reserved for the Environment and Land and the Employment and Labour Relations courts under clause 5 thereof. There is no indication that the subject of the suit herein falls under the jurisdiction of courts of equal status while the issue of limited territorial jurisdiction is clearly unfounded.
38. There are thus two issues left for the court’s determination, whether there was service of the application by the plaintiff dated 8 th April 2026 upon the 2 nd defendant and whether the suit herein is res judicata and res sub judice. I note however that the 2 nd defendant has raised another issue of jurisdiction of this court to handle the matter considering the doctrine of exhaustion of remedies and the provisions of section 18 of the Societies Act (Cap. 108) Laws of Kenya.
39. I have considred the application, the supporting affidavit, the response thereto and the submissions by learned counsels.
40. The orders issued by this court on 22 nd April 2026 were all basically injunctions. Order 40 Rule 7 of the Civil ProcedureRules , provides for the principles that govern the discharge or variation of an injunction. It provides that:
“Any order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such order.”
41. This provision is not limited to an interlocutory or final order of injunction. The court is given a wide discretion to determine whether or not to discharge, vary or set aside the injunction issued earlier. However, the discretion to discharge an injunction must beexercised judiciously. In the case of FILISTA CHEMAIYO SOSTEN V SAMSON MUTAI [2012] KEHC 322 (KLR) the High Court stated thatthe discretion under Order 40 Rule 7 like in all other discretions, the same must be exercised judiciously although there are no firm rules of law or practice that have been set down. The same ought to be sparinglyused so as to avoid a situation where it would appear as if thesame is being used as a tool for appeal. The Court furtherheld that an injunction may be discharged if it was obtainedby concealing material facts, or if the circumstances of thesuit have radically changed.
42. In Robert Nyangaresi Onuonga suing as the administrator of the Estate of Zakayo Ondara Nyandoro v Mark Nyabayo Ratemo [2016] KEHC 5592 (KLR) the Court observed thatOrder 40 Rule 7 would only come into play if there has been afundamental change of circumstances at the time theapplication is being made vis-à-vis the time when the orderwas made. Further that Order 40 Rule 7 will also be applicable where aninjunction is granted ex parte particularly where theinjunction was obtained without full disclosure of all materialfacts.
43. The court thus proceeds to consider the application herein on the above principles.
44. The first issue is whether or not service was effected upon the 2 nd defendant herein. The 2 nd defendant disputes service upon her and asked for cross-examiantion of the process server and the application was granted.
45. Cross-examiantion of the process server was conducted on 19 th June 2026 where learned counsels for the 1 st and 2 nd defendants extensively put the process server to task over how he served the application upon the 2 nd defendant. However, I find that the denial by the applicant that she was duly served is without merit. I note that the parties herein are not new to litigation against one another and the same process server has been used to serve process before upon all the defendants, including the 2 nd defendant without any complaint at all. I note that service upon the 1 st and 3 rd defendants is not disputed. I do not find any reason that has emerged that would have caused the process server to serve the others and fail to serve the 2 nd defendant. The second defendant does not dispute that the number used to serve her on Whatsapp is hers and that it indeed is functional on Whatsapp. Besides the fact that the process server satisfied this court that he duly served the application and subsequent orders upon the 2 nd defendant I am satisfied that no reason whatsoever would have caused him to lie about the service.
46. In the circumstances, I find the plea that the orders be set aside due to lack of service upon the 2 nd defendant to be without merit.
47. The second issue is whether or not the suit herein and therefore the applications by the plaintiff are res judicata and res sub judice .
48. Sections 6 and 7 of the Civil Procedure Act (Cap. 21) Laws of Kenya, provide respectively with respect to the doctrines of res sub judice and res judicata as follows:
S. 6. No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
S. 7. 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.
49. It is the applicant’s case that the issues in the present case are also substantially in other suits which have been indicated as Mombasa MCCC E1489 of 2024, Mombasa MCCC No. E1506 of 2024 and Mombasa MCCC E430 of 2024 either pending determination or have been determined.
50. In the case of Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR) the Supreme Court explained the doctrine of sub judice as follows:
“The term ‘sub-judice’ is defined in Black’s Law Dictionary 9 th Edition as:
“Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.
51. It has been held that the test to determine a matter as sub judice is whether on a final decision being reached in the previously instituted suit, such decision would operate as res judicata in the subsequent suit (see Republic vs Paul Kihara Kariuki and 2 others Ex-parte The Law Society of Kenya 2020 eKLR).
52. In explaining the phrase res judicata , the Court of Appeal in Maithene Malindi Enterprises Limited v Kaniki Karisa Kaniki & 2 others [2018] KECA 768 (KLR) cited the English case of Zurich Insurance Company PLC vs. Collin Richard Hayward [2011] EWCA CIV 641 where the court held:
“Estoppel by res judicata or estoppel by record, is a manifestation of the principle that judicial decisions once made must be accepted as final and are not open to challenge. Ultimately, it rests on a rule of policy that it is in the public interest for there to be finality in litigation, but it also sustains an important principle that decisions of competent tribunals must be accepted as providing stable basis for future conduct. The latin word ‘res judicata’ means simply ‘a thing judicially determined.’ They may apply to the claim as a whole (usually referred to as ‘cause of action estoppel’, or may refer to one or more specific issues which the court was required to decide in the course of reaching its decision on a matter before it (what is generally referred to as issue estoppel… the fact than an order is made by consent does not in my view prevent it from giving rise to estoppel by record provided the nature of the order is such that it would otherwise have that effect.” Emphasis added.
53. The key question then is whether the issues in the present suit are ‘directly and substantially in issue’ in any of the magistrates’ courts suits cited above. Unfortunately, what the applicant made available to this court are only decisions or interlocutory orders of the courts without the pleadings that would inform this court what are the issue in those suits. All the same, I find that the material that is provided is sufficient to dispose of the issue. I have considered the decisions and orders and I find as follows:
i. Mombasa MCCC E1489 of 2024 was decided in similar term
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IN THE HIGH COURT OF KENYA AT KWALE
CIVIL CASE NO. E012 OF 2025
JUMA OMAR MWANGALA (suing as the Chairperson,
Kenya Association of Private Employment Agencies
(KAPEA)...................................................................................................................PLAINTIFF
VERSUS
VINCENT OMBATI MBAKA........................................1 st DEFENDANT/RESPONDENT
VIRGINIA NJOKI MUTIGI...............................................2 ND DEFENDANT/APPLICANT
ADAN KALA ALI............................................................3 RD DEFENDANT/RESPONDENT
AND
REGISTRAR OF SOCIETIES..............................................................INTERESTED PARTY
RULING
1. There are wrangles over the leadership and management of the Kenya Association of Private Employment Agencies (KAPEA). The plaintiff/applicant claims that he is the duly elected chairperson of the said association but the 1 st defendant/respondent is impersonating the chairperson and appearing at various functions and events and presenting himself as the chairperson while the 2 nd and 3 rd defendants, having been respectively elected as Secretary and Treasurer of the Association on 13 th March 2023 were subsequently expelled as members of the association on 13 th September 2024.
2. The plaintiff Juma Omar Mwangala instituted suit against the 1 st defendant as the only defendant through a plaint dated 22 nd September 2025. He at the same time filed an application of the same date under certificate of urgency seeking orders that:
a. an injunction be issued restraining the 1 st defendant, his associates, servants and or agents from impersonating the chairperson, Kenya Association of Private Employment Agencies (KAPEA) pending the hearing and determination of the application.
b. a declaration that the Plaintiff is the duly elected and bona fide chairperson, Kenya Association of Private Employment Agencies (KAPEA).
c. costs of the application be provided for.
3. The 1 st defendant was served with court process but failed to enter appearance or respond to the application. When the application came up on 29 th October 2025 for directions to confirm filing of a response and submissions and to fix a date for ruling, learned counsel Mr. Kubo, appeared for the defendant/respondent and informed the court that they had been instructed the previous day. They had however not been mapped in the Judiciary Case Tracking System (CTS) or e-filing platform and therefore they could not file any document including a notice of appointment of advoactes. Learned counsel requested for fourteen days to enable the defendant/respondent to file a response and that was granted.
4. When the matter came up next on 17 th December 2025, there was no appearance for the respondent. Learned counsel for the applicant informed the court that no response had been served upon them either by the respondent or the Interested Party.
5. In the absence of a response to the application, the court allowed the application in terms that a temporary injunction do issue restraining the defendant, his associates, servants or any person acting under him from impersonating the chairperson of KAPEA pending hearing and determination of the suit.
6. On 9 th April 2026, the firm of Mutanu & Co. Advocates filed a Notice of Appointment of Advocates dated 27 th March 2026 to appear for the plaintiff who had hitherto been respresented by NJeru & Company Advocates.
7. The plaint was amended through an application dated 8 th April 2026 and filed in court on 10 th April 2026 seeking the following orders:
a. to join Virginia Njoki Murigi and Adan Kala Ali as the 2 nd Defendant and the 3 rd Defendants respectively in the suit:
b. leave be granted to the Plaintiff/Applicant to amend the Plaint and all accompanying pleadings to reflect the joinder of the intended Defendants and to include all relevant facts and reliefs.
c. the Amended Plaint annexed thereto be deemed as duly filed upon payment of requisite court fees.
d. pending and upon the hearing and determination of the application inter partes , an order of temporary injunction be issued restraining the 1 st Defendant/Respondent, the Intended 2 nd Defendant (Virginia Njoki Murigi) and the Intended 3 rd Defendant (Adan Kala Ali) their agents, servants, proxies or any person acting under them from holding themselves out as officials of KAPEA, acting as chairperson, secretary, treasurer or any official capacity, representing KAPEA before Government, Embassies, media, or public bodies and or convening meetings or elections in the name of KAPEA.
e. pending the hearing and determination of the suit, a temporary injunction be issued in the same terms as prayer (d) above.
f. the court to declare that the purported elections and/or meeting held on 24 th April 2025 are null and void ab initio .
g. An order be issued that status quo be maintained recognizing the Plaintiff as the lawful Chairperson of KAPEA pending the hearing and determination of this suit.
h. costs of the application be provided for.
8. The court on 13 th April 2026 issued directions on the disposal of this application and fixed it for further directions for 22 nd April 2026.
9. When the matter came up on 22 nd April 2026 learned counsel for the plaintiff/applicant informed the court that the application had been duly served and there was no response thereto. The court granted the application and directed that the amended plaint be served within 21 days. The matter was fixed for pre-trial on 10 th June 2026.
10. On 6 th May 2026, learned counsel for the 2 nd defendant Virginia Njoki Mutigi filed a Notice of Appointment of Advocates by Quincy, Jesse, Kiptoo & Associates dated 30 th April 2026, but erroneously referred to the 2 nd defendant as the 4 th defendant because the title appearances of the defendants and Interested Party were mixed up in the heading.
11. On 20 th May 2026, the 2 nd defendant Virginai Murigi filed a Notice of Motion seeking orders that:
a. The court to set aside, vacate and/or discharge the orders issued on 22 nd April, 2026 specifically orders 4, 5, 6 and 7 arising from the plaintiff’s application dated 8 th April, 2026.
b. The court to order the cross-examination of the process server, one Duncan Ken, on his affidavit of service sworn on 14 th April, 2026.
c. The said process server does produce before the court his certificate of appointment and licensing documents.
d. Pending the hearing and determination of the application, the court to stay and/or suspend the operation and enforcement of the orders 4, 5, 6 and 7 issued on 22 nd April, 2026.
e. The court to strike out and/or dismiss the main suit for want of jurisdiction.
f. The court to strike out the suit herein for being res judicata and an abuse of the court process.
g. In the alternative and without prejudice to the foregoing, the court to transfer the suit to the High Court at Nairobi for hearing and determination, KAPEA being headquartered and operating from Nairobi and the cause of action substantially arising within Nairobi County.
h. Costs of the application and the suit be provided for.
12. Directions on the hearing of the application were issued and the application was fixed for compliance on 10 th June 2026, the same date the court had fixed the matter for pre-trial of the main suit.
13. On 3 rd June 2026, the plaintiff filed a replying affidavit to the 2 nd defendant’s application dated 19 th May 2026.
14. On 8 th June 2026, the plaintiff filed an application for contempt of court against the 1 st and 2 nd defendants alleging that they had disobeyed the court orders issued on 22 nd April 2026.
15. On 10 th June 2026 there were appearances by learned counsels as follows: for the plaintiff, Ms Njuguna; for the 1 st defendant, Mr. Kubo and the 2 nd defendant, Mr. Kiptoo. There was no appearance for the 3 rd defendant and the Interested Party. Learned counsel Mr. Kubo informed the court that he had challenges being mapped to the CTS as he was informed by registry staff that there were challenges with power at Kwale Law Courts. The court confirmed that indeed there had been such power challenges in the past two weeks. Learned counsel said that he had however since been mapped and filed his notice of appointment of advocates for the 1 st defendant dated 9 th June 2026.
16. Learned counsel Mr. Kubo for the 1 st defendant informed the court that the 1 st defendant wished to file a notice of preliminary objection to the plaintiff’s suit on grounds that the plaintiff had filed multiple suits in various courts on the same subject matter. Further that the 1 st defendant had never been served with the application for joinder and amendment of plaint dated 8 th April 2026 which was the same application that had necessitated the orders granted on 22 nd April 2026. He had only been served with the application for contempt of court.
17. Learned counsel for the 2 nd defendant/respondent Mr. Kiptoo pointed out some irregularities in the plaintiff filing and withdrawing an amended plaint and then filing another amended plaint instead of a further amended plaint.
18. The court gave directions that the issue that needed immediate disposal was whether or not the defendants had been served with the application dated 8 th April 2026 and therefore whether the ensuing orders issued on 22 nd April 2026 were regular or not. Therefore, the 2 nd respondent’s application dated 19 th May 2026 is the one that comes up for determination.
19. The application is brought under Articles 47, 50 and 159 of the Constitution of Kenya, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Order 10 Rule 11, Order 40 Rule 7, Order 51 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law.
20. The grounds in support of the application are laid out on the face thereof and reproduced below and expounded in the supporting affidavit of Virginia Njoki Murigi, sworn on 19 th May 2026. They are that:
a. the orders issued on 22 nd April, 2026 were obtained ex parte through material nondisclosure, procedural impropriety and want of service and the 2 nd Defendant/Applicant was never served with the Plaintiff’s application dated 8 th April, 2026 despite adverse and far-reaching orders being sought against her. Further that the affidavit of service sworn by Duncan Ken on 14 th April, 2026 is manifestly defective, evasive and incapable of proving proper service as there is no evidence of proper WhatsApp service, confirmation of delivery, identification of the alleged telephone number or verification linking the number to the 2 nd Defendant/Applicant.
b. the impugned orders are final in nature and effectively determine substantive issues in the suit at an interlocutory stage. The orders have paralysed the operations of KAPEA by restraining duly elected officials from discharging constitutional mandates.
c. the disputes herein concern the internal affairs, elections and officials of a registered society, matters falling primarily within the statutory mandate of the Registrar of Societies. The Plaintiff has not exhausted the dispute resolution mechanisms provided under the Societies Act before invoking this Court’s jurisdiction. The High Court exercises appellate jurisdiction in disputes arising from decisions of the Registrar of Societies and no such appeal exists herein.
d. the Plaintiff is guilty of forum shopping, multiplicity of suits and material non-disclosure. Further that the issues raised herein are materially res judicata in view of previously instituted suits including:
i. Mombasa MCCC E1489 of 2024 was decided in similar terms as Mombasa MCCC No. E1506 of 2024 below;
ii. Mombasa MCCC E1506 of 2024; In this matter, I have looked at the ruling of the Magistrate’s Court at Mombasa delivered on 28 th May 2025 and I note that the court found that it had no jurisdiction to hear and determine the issues raised and the same ought to be handled by the Registrar of Societies and any appeal arising therefrom be made to the High Court. In that case, the issues cannot be said to be res judicata as they were not heard and determined with finality.
iii. Mombasa MCCC E430 of 2025. What is annexed is an order at the ex-parte stage on a certificate of urgency whereat on 23 rd April 2025, the court issued an order stopping elections of the associations officials scheduled for 24 th April 2025. It would appear that the application had been filed by the 2 nd respondent herein. However, on 24 th April 2025, the court vacated its order stopping elections and directed that the matter be handled by the court that was handling the series of matters in the files.
e. the Plaintiff voluntarily declined to participate in the elections held on 24 th April, 2025 despite being duly invited. The elections complained of were supervised and conducted with the involvement of the National Employment Authority (NEA) and have previously received judicial recognition.
f. the continued subsistence of the impugned orders is gravely prejudicial to the operations, governance and financial affairs of KAPEA and therefore it is in the interest of justice that the orders be vacated and the suit struck out.
21. In her supporting affidavit, Virginia Njoki, the 2 nd respondent deposes that she is the duly elected Secretary General of KAPEA through elections held on 24 th April 2025 and she had previously served in the same capacity. She has attached to the affidavit a copy of the said election results and ensuing minutes dated 24 th April 2025 signed by the Secretary General showing who the elected officials were. Further that the plaintiff is the former chairman of the association. He was invited to take part in the said elections but voluntarily chose to abandon and abscond the electoral process. The plaintiff had prior to and after the said elections filed multiple suits against other officials of the association which touch on similar issues as the ones herein.
22. She deposes that she was never served with the application dated 8 th April 2026 in her personal capacity or as Secretary General of KAPEA. That she was only served with the orders on 14 th May 2026. She deposes that the affidavit of service sworn by Duncan Ken on 14 th April 2026 was false and misleading and the mobile phone number purportedly used to serve her by Whatsapp was never identified, verified or linked to her.
23. The applicant deposes that the association has its headquarters in Nairobi from where all its affairs are conducted and therefore the suit herein should have been filed in Nairobi.
24. On jurisdiction, the applicant deposes that under the Socities Act (Cap. 108) Laws of Kenya, the dispute herein should first have been filed with the Registrar of Societies and only come to the High Court on appeal, which is not the case herein. The plaintiff therefore failed to exhaust the statutory mechanisms provided.
25. The applicant deposes further that the orders issued herein restraining her from carrying out constitutional functions of the office of Secretary General are final in nature yet issued at an interlocutory stage and they have paralysed the operations of the association.
26. The application is opposed by the plaintiff Juma Omar Mwangala through the replying affidavit sworn on 3 rd June 2026. He deposes that the application lacks merit and the same should be dismissed.
27. He desposes that the 2 nd defendant was duly served with the application dated 8 th April 2026 as per the affidavit of service sworn by Duncan Ken on 14 th April 2026.
28. He deposes that under the constitution of KAPEA, Article 6 clause 6.2(b), 6.2(c), and Article 7 clauses 7.4.1 and 7.4.4 and Article 10 clause 10.2 the 2 nd defendant was not qualified to be a member and therefore leader of the association because according to the records maintained by the National Employment Authority Management System (NEAMS), Satmar Technology Limited, the company through which the 2 nd defendant/applicant herein, Virginia Njoki Murigi purported to use in order to qualify for membership and leadership within KAPEA, is not an accredited recruitment agencу. Consequently, she ceased to qualify for membership and leadership within KAPEÀ and lacks the necessary locus standi to purport to act on behalf of KAPEA. He has annexed to his affidavit the constitution of KAPEA and copies of the relevant NEAMS records.
29. He deposes further that the 2 nd and 3 rd defendants were expelled from the association through resolutions and executive orders which were duly served upon them on 17 th February 2025 and they have never challenged their said expulsion and therefore ceased to be lawful members and officials of KAPEA. Further that correspondence and records relating to the 2 nd and 3 rd defendants’ misconduct and expulsion were duly forwarded to the Registrar of Societies.
30. The plaintiff deposes that the elections held on 24 th April 2025 whereby certain persons were elected into office including the defendants herein were unconstitutional, irregular, unlawful and void ab initio for various reasons which he has enumerated. Further that the Registrar of Societies has not approved the results of the purported elections.
31. The plaintiff despoes that he is the duly elected National Chairperson of KAPEA with a substantial number of KAPEA members residing within Kwale County and the Coast Region and as such, the Association's operational headquarters are situated at the Waqf Building, 1 st Floor Mombasa. The Association's last lawful elections were conducted in Mombasa on 13 th March 2023 and the Association's records are principally maintained in Mombasa County. Mombasa and Kwale remain the most convenient and appropriate fora for the determination of the dispute herein and the proposed transfer of the matter to Nairobi is misconceived and prejudicial to the Association and its members.
32. The plaintiff deposes that applicant’s plea of res judicata is misconceived and untrue. He points out that the applicant herein previously instituted Mombasa CMCC No. MCC/E430/2025 against the respondent and obtained injunctive orders restraining the convening and holding of KAPEA AGM/elections pending hearing and determination of the suit. The applicant cannot therefore approbate and reprobate by simultaneously asserting before another court that lawful elections were subsequently conducted on 24 th April 2025 while the dispute regarding the legality of such processes remained active before a competent court. The said conduct is contradictory, misleading, an abuse of the court process and renders the alleged elections disputed, irregular and incapable of conferring legitimacy.
33. Further on the applicant’s plea of res judicata , the matters previously relied upon by the applicant were either struck out, dismissed for want of jurisdiction, or were never substantively heard and determined on merits by a court of competent jurisdiction, and therefore do not satisfy the legal threshold for the application of the doctrine of res judicata under Section 7 of the Civil Procedure Act and the applicant is therefore improperly invoking the doctrine of res judicata in an attempt to evade judicial scrutiny regarding continuing acts of impersonation, contempt of court and unlawful interference with the affairs of ΚΑΡΕΑ. Further that the plaintiff is aware that a previous High Court matter was dismissed upon a finding that certain issues overlapped with Mombasa CMCC MCC/E430/2025.
34. Learned counsels for the parties filed submissions on the application. The same are considered in the analysis that follows.
35. Learned counsel for the applicant submits the following issues for determination:
a. Whether the orders dated 22 nd April 2026 should be set aside, discharged and/or vacated for want of service?
b. Whether the suit herein is res judicata and res sub judice ?
c. Whether this court has subject matter and territorial jurisdiction?
36. Learned counsel for the plaintiff/respondent submitted that the only issue for determination is whether the orders of this court issued on 22 nd April 2026 should be set aside.
37. I do not find the issue of subject matter and territorial jurisdiction to carry weight for determination. Under Article 165(3) of the constitution, the High Court is conferred with unlimited original jurisdiction in criminal and civil matters save for matters reserved for the Environment and Land and the Employment and Labour Relations courts under clause 5 thereof. There is no indication that the subject of the suit herein falls under the jurisdiction of courts of equal status while the issue of limited territorial jurisdiction is clearly unfounded.
38. There are thus two issues left for the court’s determination, whether there was service of the application by the plaintiff dated 8 th April 2026 upon the 2 nd defendant and whether the suit herein is res judicata and res sub judice. I note however that the 2 nd defendant has raised another issue of jurisdiction of this court to handle the matter considering the doctrine of exhaustion of remedies and the provisions of section 18 of the Societies Act (Cap. 108) Laws of Kenya.
39. I have considred the application, the supporting affidavit, the response thereto and the submissions by learned counsels.
40. The orders issued by this court on 22 nd April 2026 were all basically injunctions. Order 40 Rule 7 of the Civil ProcedureRules , provides for the principles that govern the discharge or variation of an injunction. It provides that:
“Any order for an injunction may be discharged, or varied, or set aside by the court on application made thereto by any party dissatisfied with such order.”
41. This provision is not limited to an interlocutory or final order of injunction. The court is given a wide discretion to determine whether or not to discharge, vary or set aside the injunction issued earlier. However, the discretion to discharge an injunction must beexercised judiciously. In the case of FILISTA CHEMAIYO SOSTEN V SAMSON MUTAI [2012] KEHC 322 (KLR) the High Court stated thatthe discretion under Order 40 Rule 7 like in all other discretions, the same must be exercised judiciously although there are no firm rules of law or practice that have been set down. The same ought to be sparinglyused so as to avoid a situation where it would appear as if thesame is being used as a tool for appeal. The Court furtherheld that an injunction may be discharged if it was obtainedby concealing material facts, or if the circumstances of thesuit have radically changed.
42. In Robert Nyangaresi Onuonga suing as the administrator of the Estate of Zakayo Ondara Nyandoro v Mark Nyabayo Ratemo [2016] KEHC 5592 (KLR) the Court observed thatOrder 40 Rule 7 would only come into play if there has been afundamental change of circumstances at the time theapplication is being made vis-à-vis the time when the orderwas made. Further that Order 40 Rule 7 will also be applicable where aninjunction is granted ex parte particularly where theinjunction was obtained without full disclosure of all materialfacts.
43. The court thus proceeds to consider the application herein on the above principles.
44. The first issue is whether or not service was effected upon the 2 nd defendant herein. The 2 nd defendant disputes service upon her and asked for cross-examiantion of the process server and the application was granted.
45. Cross-examiantion of the process server was conducted on 19 th June 2026 where learned counsels for the 1 st and 2 nd defendants extensively put the process server to task over how he served the application upon the 2 nd defendant. However, I find that the denial by the applicant that she was duly served is without merit. I note that the parties herein are not new to litigation against one another and the same process server has been used to serve process before upon all the defendants, including the 2 nd defendant without any complaint at all. I note that service upon the 1 st and 3 rd defendants is not disputed. I do not find any reason that has emerged that would have caused the process server to serve the others and fail to serve the 2 nd defendant. The second defendant does not dispute that the number used to serve her on Whatsapp is hers and that it indeed is functional on Whatsapp. Besides the fact that the process server satisfied this court that he duly served the application and subsequent orders upon the 2 nd defendant I am satisfied that no reason whatsoever would have caused him to lie about the service.
46. In the circumstances, I find the plea that the orders be set aside due to lack of service upon the 2 nd defendant to be without merit.
47. The second issue is whether or not the suit herein and therefore the applications by the plaintiff are res judicata and res sub judice .
48. Sections 6 and 7 of the Civil Procedure Act (Cap. 21) Laws of Kenya, provide respectively with respect to the doctrines of res sub judice and res judicata as follows:
S. 6. No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
S. 7. 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.
49. It is the applicant’s case that the issues in the present case are also substantially in other suits which have been indicated as Mombasa MCCC E1489 of 2024, Mombasa MCCC No. E1506 of 2024 and Mombasa MCCC E430 of 2024 either pending determination or have been determined.
50. In the case of Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR) the Supreme Court explained the doctrine of sub judice as follows:
“The term ‘sub-judice’ is defined in Black’s Law Dictionary 9 th Edition as:
“Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.
51. It has been held that the test to determine a matter as sub judice is whether on a final decision being reached in the previously instituted suit, such decision would operate as res judicata in the subsequent suit (see Republic vs Paul Kihara Kariuki and 2 others Ex-parte The Law Society of Kenya 2020 eKLR).
52. In explaining the phrase res judicata , the Court of Appeal in Maithene Malindi Enterprises Limited v Kaniki Karisa Kaniki & 2 others [2018] KECA 768 (KLR) cited the English case of Zurich Insurance Company PLC vs. Collin Richard Hayward [2011] EWCA CIV 641 where the court held:
“Estoppel by res judicata or estoppel by record, is a manifestation of the principle that judicial decisions once made must be accepted as final and are not open to challenge. Ultimately, it rests on a rule of policy that it is in the public interest for there to be finality in litigation, but it also sustains an important principle that decisions of competent tribunals must be accepted as providing stable basis for future conduct. The latin word ‘res judicata’ means simply ‘a thing judicially determined.’ They may apply to the claim as a whole (usually referred to as ‘cause of action estoppel’, or may refer to one or more specific issues which the court was required to decide in the course of reaching its decision on a matter before it (what is generally referred to as issue estoppel… the fact than an order is made by consent does not in my view prevent it from giving rise to estoppel by record provided the nature of the order is such that it would otherwise have that effect.” Emphasis added.
53. The key question then is whether the issues in the present suit are ‘directly and substantially in issue’ in any of the magistrates’ courts suits cited above. Unfortunately, what the applicant made available to this court are only decisions or interlocutory orders of the courts without the pleadings that would inform this court what are the issue in those suits. All the same, I find that the material that is provided is sufficient to dispose of the issue. I have considered the decisions and orders and I find as follows:
i. Mombasa MCCC E1489 of 2024 was decided in similar term
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