Background:
1. This Appeal emanates from the Ruling delivered on 21st June 2024. The Ruling was on a preliminary objection dated 16th April 2024 on grounds that the suit was Res judicata. The Learned Magistrate in his Ruling found that the suit before him was he same as MCCC E163 of 2021.
The Appeal.
2. The Appellants herein aggrieved by the Ruling preferred an appeal to this Court, the grounds of appeal are as follows:
(i) The Learned Magistrate erred in Law by failing to consider the substantive issues of the case and dismissed the case on a procedural flaw of difference in the parties.
(ii) The Learned Magistrate erred in Law and in fact in finding that the suit in Nairobi CMCC No.247 OF 2023 was res judicata and dismissed the same with costs.
(iii) The Learned Magistrate erred in Law and fact by failing to have due regard that the Plaintiff inE247 of 2023 and E163 of 2021 were totally different.
(iv) The Learned Magistrate erred in Law and fact by failing to take into account the grounds of opposition filed by the Appellant.
(v) The Learned Magistrate erred in Law and fact by failing to take into account the substantive law and judicial authorities cited by the Appellant.
(vi) The Learned Magistrate erred in Law and fact by failing to consider that the issues in Nairobi CMCC No. E163 of 2021 were never heard and determined as the suit did not proceed to full trial.
(vii) The Learned Magistrate misdirected himself when he found contrary to law that the suit in E247 of 2023 was res judicata.
3. The Appellant prays that the Ruling of the Trial Court be set aside and the case be reopened for hearing and determination.
The Submissions:
4. The Appellant vide their submissions dated 9th October 2025 gave the background of the dispute and raised two issues for determination being whether the Learned Magistrate erred in law by dismissing the suit on basis of res judicata and if the Learned Magistrate erred by failing to consider the merits of the case.
5. It is the Appellant’s arguments that the previous case was decided solely on the issue of locus standi where the Magistrate found that the proper party to bring to the suit was the Appellant herein (Mimosa Court Mgt Ltd) not the interested party (Aquavit Ltd).
6. The Appellant submits that the merits were not decided hence faulted the Magistrate for misapprehending the Law and facts.
7. The Respondent vide their written submissions dated 24th February 2026 urged the Court to dismiss the Appeal with costs and uphold the Lower Court ruling.
8. They took time to outline the Orders sought in E163of 2021 and in E247 of 2023 and submitted that the appeal is a blatant abuse of Court process and that the Respondent is being subjected to numerous court cases hence unending litigation.
9. The Respondent cited numerous authorities supporting their position and the principle of Res Judicata. They hold that what is in dispute is if the parties are similar. The ingredients of Res Judicata bars a Court from trying any suit or issue in which a matter directly and substantially in issue has been directly and substantially in issue in a former in suit between the same parties, or between parties under whom the or any of them claim.
Analysis of the issue for determination.
10. From the above analysis, the main issue for determination whether the Lower Court case is Res Judicata. To start off this Court will look at the wordings of Section 7 of the Civil procedure Act. It reads as follows:
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court…”
11. Section 7 prohibits the court, in absolute terms, from hearing a suit which raises issues that have already been heard and finally determined by a court of competent jurisdiction in an earlier suit between the same parties or parties claiming under them. The rationale behind the doctrine of res judicata rests on the principles that litigation must come to an end, and that the court cannot be asked to determine the same issue over and over. This was highlighted in case of Kenya Commercial Bank Limited v Muiri Cofee Estate Limited & another [2016] eKLR.
12. This Court now will look at the two cases to enable it determine the issue of Res judicata.
Nairobi MCCC E163 of 2021: Aquavit Limited vs Kins Group Ltd (1st Defendant), Desire Ventures Ltd (2nd Defendant)
13. This Suit was filed in the Chief Magistrates Court at Nairobi. Orders sought are mainly:
(a) a declaration that the action of preventing and or refusing the Plaintiff from removing its facilities and items from the property known as Title number 3734/1112 located alongside James Gichuru Rd conveniently known as Lavington Mall Water point was unjustified and illegal.
(b) compensation for unlawful use of Plaintiff’s property by the Defendant for period running 31.01.2020 to 06.03.2021
(c) Punitive and exemplary damages against the defendants.
14. The Judgement was delivered on 19th August 2022 whereby the suit was dismissed. The case had earlier proceeded for formal proof and the Court in its analysis of the Contract noted that Mimosa Court management was trading as “Aquavit’’ and wondered in absence of the clause in the contract explaining between the two legal entities how it was supposed to adjudicate, distinguish who the lessee between the two!
15. The Court further held that the Contract produced before it was unenforceable for failure to determine properly which between the two parties was the one who entered into contract is liable to sue and be sued. Again, if the said contract is enforceable then the one to enforce is not the Plaintiff but Mimosa Court Management Ltd.
16. The Court found that the proper party to sue is Mimosa Court and gave a basis for that finding. The Court dismissed the suit.
Nairobi CMCCC E247 of 2023: Mimosa Court Limited vs Kins Group Ltd (Defendant), Aquavit Ltd (Interested Party)
17. Plaint was filed seeking Kshs. 808,130.40/= with interest at court rates from February 2020 until payment in full. The grounds were failing to observe the terms of the Lease agreement and failure to allow the plaintiff to remove its facilities and items. And leasing out the plaintiff’s facilities without its consent.
18. The Defendant filed a PO Dated 16th April 2026 seeking to have the suit dismissed for grounds that its Res Judicate.
19. The Trial Court rendered its ruling on 21st June 2024 dismissing the suit on grounds that it was Res Judicata. The Trial Court found that the parties were similar, as to sameness in the claim, he found that in the previous suit the subject property was property number 3734/1112 and that the current suit was on the same property therefore he found sameness in the subject matter.
20. The Trial court found that the previous court had jurisdiction and concluded by finding the suit is Res Judicata.
21. The question, therefore is whether this appeal represents a legitimate plea before this court or an impermissible attempt to re-open a dispute that has already been shut.
22. It is important to note the principle of res judicata does not operate in abstraction and requires one to demonstrate concurrence of identity of issues, identity of parties or their privies, and a final determination by a court of competent jurisdiction. It presupposes that the Applicant is either a party to or bound by, the earlier proceedings.
23. The doctrine of “res judicata" is provided for under Section 7 of the Civil Procedure Act. The Act has also provided explanations with respect to the application of the res judicata rule. Explanation 1-6 are in the following terms:
Explanation (1) —The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted
Explanation (2) —For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.
Explanation (3) —The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation (4) — Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation (5) — Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.
Explanation (6) — Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
24. In this appeal it is not in doubt that the issues are the same, the parties involved are the same and either as the plaintiff’s or defendants. Reliance on the in Supreme court in the decision in John Florence Maritim Services limited & Another -Versus- Cabinet Secretary & 3 others.
25. The Appellant and the Interested party herein operated in each other name as companies. While the principle of res-judicata bars a party from relitigating a matter that has already been determined by a competent court, the concept of privity in res judicata focuses on who is legally bound by the resolution of a dispute.
26. On the issue as to whether the original suit was heard and determined on merit. This issue touches on the fundamental Right to fair hearing. As demonstrated in the Court of Appeal decision in Musila v Thengi & 2 others [2025] KECA 750 (KLR), where the court at paragraph 27 state that
“Article 50 of the Constitution addresses the right to have a dispute fairly resolved by a court or an impartial tribunal. Due to the various elaborate motions available to resolve land disputes arising from adjudication processes, the matter may have taken a long time. The appellant followed all steps, culminating with an appeal before the 2nd appellant. We see that opportunities were available to him, including before the 2nd respondent, when an adjournment was granted at his request; however, on the date he requested the matter be heard, he failed to prosecute the appeal. The reason given by the appellant for his absence at the hearing, in our view, was lame as it does not make sense how, barely three days later, the appellant surfaced. Learned counsel for the appellant has introduced a new angle of having written to the 2nd respondent. The record does not show the involvement of counsel at that stage. Learned counsel does not explain why he was absent before the 2nd respondent to explain his client’s predicaments, if any. Furthermore, adjournments at hearings are not ordinarily sought through letters; in any event, this was not brought to the attention of the first appellate court and appears as an afterthought.”
27. Equally, Article 50 of the Constitution on Right to fair hearing was clearly elaborated in the Supreme court decision in Mohamed Abdi Mahamud v. Ahmed Abdullahi Mohamad & 3 others Petition 7 of 2018 consolidated with Petition 9 of 2018 [2018] eKLR determined what constitutes a right to fair hearing. While referring on the decision in the matter of Indru Ramchand Bharvani & Others v. Union of India & Others, 1988 SCR Supl. (1) 544, 555, the Supreme Court of India, found that a fair hearing has two justiciable elements: (i) an opportunity of hearing must be given; and
(ii) that opportunity must be reasonable (citing Bal Kissen Kejriwal v. Collector of Customs, Calcutta & Others, AIR 1962 Cal. 460).
28. In the present appeal, the Appellant upon instituting a suit, was given ample and reasonable time to prepare and finally the matter was heard by way of a formal proof. It is in my opinion that the Appellant was accorded a fair hearing and the claim that the matter was dismissed based on lack of locus must fail. The Court of Appeal in [2026] KECA 231 (KLR) analyzed the issue of Res Judicata and made the following findings:
“The second principle is that parties will not be permitted to evade the doctrine of res judicata by adding new parties or introducing a new cause of action so as to seek the same remedy as that sought in the first suit”
29. I further rely in the case of Kenya Commercial Bank Ltd v. Muiri Coffee Estate & Another where Supreme Court stated:
“59…Courts have to be vigilant against the drafting of pleading in such manner as to obviate the res judicata principle…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.”
30. From the above analysis, I find that the appeal lacks merit and dismiss it with costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 10th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Munga for Juma , Learned Counsel for the Appellant.
Swaka Learned Counsel for the Respondent.
Michael - Court Assistant.
1. This Appeal emanates from the Ruling delivered on 21st June 2024. The Ruling was on a preliminary objection dated 16th April 2024 on grounds that the suit was Res judicata. The Learned Magistrate in his Ruling found that the suit before him was he same as MCCC E163 of 2021.
The Appeal.
2. The Appellants herein aggrieved by the Ruling preferred an appeal to this Court, the grounds of appeal are as follows:
(i) The Learned Magistrate erred in Law by failing to consider the substantive issues of the case and dismissed the case on a procedural flaw of difference in the parties.
(ii) The Learned Magistrate erred in Law and in fact in finding that the suit in Nairobi CMCC No.247 OF 2023 was res judicata and dismissed the same with costs.
(iii) The Learned Magistrate erred in Law and fact by failing to have due regard that the Plaintiff inE247 of 2023 and E163 of 2021 were totally different.
(iv) The Learned Magistrate erred in Law and fact by failing to take into account the grounds of opposition filed by the Appellant.
(v) The Learned Magistrate erred in Law and fact by failing to take into account the substantive law and judicial authorities cited by the Appellant.
(vi) The Learned Magistrate erred in Law and fact by failing to consider that the issues in Nairobi CMCC No. E163 of 2021 were never heard and determined as the suit did not proceed to full trial.
(vii) The Learned Magistrate misdirected himself when he found contrary to law that the suit in E247 of 2023 was res judicata.
3. The Appellant prays that the Ruling of the Trial Court be set aside and the case be reopened for hearing and determination.
The Submissions:
4. The Appellant vide their submissions dated 9th October 2025 gave the background of the dispute and raised two issues for determination being whether the Learned Magistrate erred in law by dismissing the suit on basis of res judicata and if the Learned Magistrate erred by failing to consider the merits of the case.
5. It is the Appellant’s arguments that the previous case was decided solely on the issue of locus standi where the Magistrate found that the proper party to bring to the suit was the Appellant herein (Mimosa Court Mgt Ltd) not the interested party (Aquavit Ltd).
6. The Appellant submits that the merits were not decided hence faulted the Magistrate for misapprehending the Law and facts.
7. The Respondent vide their written submissions dated 24th February 2026 urged the Court to dismiss the Appeal with costs and uphold the Lower Court ruling.
8. They took time to outline the Orders sought in E163of 2021 and in E247 of 2023 and submitted that the appeal is a blatant abuse of Court process and that the Respondent is being subjected to numerous court cases hence unending litigation.
9. The Respondent cited numerous authorities supporting their position and the principle of Res Judicata. They hold that what is in dispute is if the parties are similar. The ingredients of Res Judicata bars a Court from trying any suit or issue in which a matter directly and substantially in issue has been directly and substantially in issue in a former in suit between the same parties, or between parties under whom the or any of them claim.
Analysis of the issue for determination.
10. From the above analysis, the main issue for determination whether the Lower Court case is Res Judicata. To start off this Court will look at the wordings of Section 7 of the Civil procedure Act. It reads as follows:
“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court…”
11. Section 7 prohibits the court, in absolute terms, from hearing a suit which raises issues that have already been heard and finally determined by a court of competent jurisdiction in an earlier suit between the same parties or parties claiming under them. The rationale behind the doctrine of res judicata rests on the principles that litigation must come to an end, and that the court cannot be asked to determine the same issue over and over. This was highlighted in case of Kenya Commercial Bank Limited v Muiri Cofee Estate Limited & another [2016] eKLR.
12. This Court now will look at the two cases to enable it determine the issue of Res judicata.
Nairobi MCCC E163 of 2021: Aquavit Limited vs Kins Group Ltd (1st Defendant), Desire Ventures Ltd (2nd Defendant)
13. This Suit was filed in the Chief Magistrates Court at Nairobi. Orders sought are mainly:
(a) a declaration that the action of preventing and or refusing the Plaintiff from removing its facilities and items from the property known as Title number 3734/1112 located alongside James Gichuru Rd conveniently known as Lavington Mall Water point was unjustified and illegal.
(b) compensation for unlawful use of Plaintiff’s property by the Defendant for period running 31.01.2020 to 06.03.2021
(c) Punitive and exemplary damages against the defendants.
14. The Judgement was delivered on 19th August 2022 whereby the suit was dismissed. The case had earlier proceeded for formal proof and the Court in its analysis of the Contract noted that Mimosa Court management was trading as “Aquavit’’ and wondered in absence of the clause in the contract explaining between the two legal entities how it was supposed to adjudicate, distinguish who the lessee between the two!
15. The Court further held that the Contract produced before it was unenforceable for failure to determine properly which between the two parties was the one who entered into contract is liable to sue and be sued. Again, if the said contract is enforceable then the one to enforce is not the Plaintiff but Mimosa Court Management Ltd.
16. The Court found that the proper party to sue is Mimosa Court and gave a basis for that finding. The Court dismissed the suit.
Nairobi CMCCC E247 of 2023: Mimosa Court Limited vs Kins Group Ltd (Defendant), Aquavit Ltd (Interested Party)
17. Plaint was filed seeking Kshs. 808,130.40/= with interest at court rates from February 2020 until payment in full. The grounds were failing to observe the terms of the Lease agreement and failure to allow the plaintiff to remove its facilities and items. And leasing out the plaintiff’s facilities without its consent.
18. The Defendant filed a PO Dated 16th April 2026 seeking to have the suit dismissed for grounds that its Res Judicate.
19. The Trial Court rendered its ruling on 21st June 2024 dismissing the suit on grounds that it was Res Judicata. The Trial Court found that the parties were similar, as to sameness in the claim, he found that in the previous suit the subject property was property number 3734/1112 and that the current suit was on the same property therefore he found sameness in the subject matter.
20. The Trial court found that the previous court had jurisdiction and concluded by finding the suit is Res Judicata.
21. The question, therefore is whether this appeal represents a legitimate plea before this court or an impermissible attempt to re-open a dispute that has already been shut.
22. It is important to note the principle of res judicata does not operate in abstraction and requires one to demonstrate concurrence of identity of issues, identity of parties or their privies, and a final determination by a court of competent jurisdiction. It presupposes that the Applicant is either a party to or bound by, the earlier proceedings.
23. The doctrine of “res judicata" is provided for under Section 7 of the Civil Procedure Act. The Act has also provided explanations with respect to the application of the res judicata rule. Explanation 1-6 are in the following terms:
Explanation (1) —The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted
Explanation (2) —For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.
Explanation (3) —The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation (4) — Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation (5) — Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.
Explanation (6) — Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
24. In this appeal it is not in doubt that the issues are the same, the parties involved are the same and either as the plaintiff’s or defendants. Reliance on the in Supreme court in the decision in John Florence Maritim Services limited & Another -Versus- Cabinet Secretary & 3 others.
25. The Appellant and the Interested party herein operated in each other name as companies. While the principle of res-judicata bars a party from relitigating a matter that has already been determined by a competent court, the concept of privity in res judicata focuses on who is legally bound by the resolution of a dispute.
26. On the issue as to whether the original suit was heard and determined on merit. This issue touches on the fundamental Right to fair hearing. As demonstrated in the Court of Appeal decision in Musila v Thengi & 2 others [2025] KECA 750 (KLR), where the court at paragraph 27 state that
“Article 50 of the Constitution addresses the right to have a dispute fairly resolved by a court or an impartial tribunal. Due to the various elaborate motions available to resolve land disputes arising from adjudication processes, the matter may have taken a long time. The appellant followed all steps, culminating with an appeal before the 2nd appellant. We see that opportunities were available to him, including before the 2nd respondent, when an adjournment was granted at his request; however, on the date he requested the matter be heard, he failed to prosecute the appeal. The reason given by the appellant for his absence at the hearing, in our view, was lame as it does not make sense how, barely three days later, the appellant surfaced. Learned counsel for the appellant has introduced a new angle of having written to the 2nd respondent. The record does not show the involvement of counsel at that stage. Learned counsel does not explain why he was absent before the 2nd respondent to explain his client’s predicaments, if any. Furthermore, adjournments at hearings are not ordinarily sought through letters; in any event, this was not brought to the attention of the first appellate court and appears as an afterthought.”
27. Equally, Article 50 of the Constitution on Right to fair hearing was clearly elaborated in the Supreme court decision in Mohamed Abdi Mahamud v. Ahmed Abdullahi Mohamad & 3 others Petition 7 of 2018 consolidated with Petition 9 of 2018 [2018] eKLR determined what constitutes a right to fair hearing. While referring on the decision in the matter of Indru Ramchand Bharvani & Others v. Union of India & Others, 1988 SCR Supl. (1) 544, 555, the Supreme Court of India, found that a fair hearing has two justiciable elements: (i) an opportunity of hearing must be given; and
(ii) that opportunity must be reasonable (citing Bal Kissen Kejriwal v. Collector of Customs, Calcutta & Others, AIR 1962 Cal. 460).
28. In the present appeal, the Appellant upon instituting a suit, was given ample and reasonable time to prepare and finally the matter was heard by way of a formal proof. It is in my opinion that the Appellant was accorded a fair hearing and the claim that the matter was dismissed based on lack of locus must fail. The Court of Appeal in [2026] KECA 231 (KLR) analyzed the issue of Res Judicata and made the following findings:
“The second principle is that parties will not be permitted to evade the doctrine of res judicata by adding new parties or introducing a new cause of action so as to seek the same remedy as that sought in the first suit”
29. I further rely in the case of Kenya Commercial Bank Ltd v. Muiri Coffee Estate & Another where Supreme Court stated:
“59…Courts have to be vigilant against the drafting of pleading in such manner as to obviate the res judicata principle…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.”
30. From the above analysis, I find that the appeal lacks merit and dismiss it with costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 10th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Munga for Juma , Learned Counsel for the Appellant.
Swaka Learned Counsel for the Respondent.
Michael - Court Assistant.