1. This ruling is in relation to Notice of Motion dated 30 th December 2025 presented under Articles 20, 22, 48, 50(1), 159 (2)(b) &(d), 165 and 258 of the Constitution of Kenya and Sections (sic) 19 and 24 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. The application is supported by the affidavits of the 1 st applicant Okiya Omtatah Okoiti sworn on 30 th December 2025, 12 th January 2026 and 22 nd January 2026. In addition is an affidavit of Bernard Muchiri Muchere the 2 nd Petitioner sworn on 19 th February 2026. The 1 st and 3 rd Petitioners have also sworn an affidavit on 5 th January 2026 in which they distinguish this Petition from Petition No. E714 of 2026, PET E517 of 2025 and PET E546 of 2025
2. The Application seeks the following orders-
1) Spent
2) THAT pending the inter partes hearing and determination of this application, and/or pending the hearing and determination of the petition herein, the Honourable Court be pleased to issue a conservatory order restraining the respondents, their agents, servants, employees, or any person acting under their authority, from:
(a) Taking any further process, steps decision, agreement, contract, policy, transaction, and approval, to implement, operationalise, or execute the privatisation of the Kenya Pipeline Company (KPC) Limited, including but not limited to:
(i) the appointment or engagement of transaction advisers, legal advisers, investment banks, brokers, or public relations firms;
(ii) the valuation of KPC, the valuation of shares, the structuring of an Initial Public Offering, or the marketing and sale of any shares;
(iii) preparation, approval, or issuance of any prospectus or information memorandum;
(iv) listing or intended listing of KPC shares through an Initial Public Offering (IPO);
(v) sale, transfer, dilution, or disposal of any shares or interests in KPC; and
(vi) any preparatory, ancillary, or consequential acts connected thereto.
(b) Using any public funds, or committing the National Treasury, to finance, promote, or otherwise enable the privatisation process for KPC.
(c) Undertaking, continuing, financing, facilitating, or implementing the privatisation of KPC in any manner whatsoever.
(d) Issuing any public notices, calls for bids, or communications that would advance the privatisation of KPC.
(e) Taking any steps that may alter the ownership, control, legal status, governance structure, or strategic character of the Kenya Pipeline Company Limited.
3) THAT pending the hearing and determination of this application on an inter partes basis, this Honourable Court be pleased to issue a mandatory interim order compelling the 1st, 2nd, 3 rd and 4th Respondents, within seven (7) days, to file in Court and serve upon the petitioners certified copies of the following documents and information relating to the ongoing privatisation of KPC:
(a) All valuation reports, feasibility studies, transaction structures, and financial models;
(b) All Cabinet memoranda, approvals, policy papers, and briefing notes;
(c) The complete International Monetary Fund Country Report No. 24/316 and all Letters of Intent, Memoranda of Understanding, side agreements. correspondence, Letters of Intent, Memoranda of Understanding, or undertakings between the Government of Kenya and the International Monetary Fund (IMF) relating to privatisation of State Corporations;
(d) All reports or reviews of State Corporations conducted pursuant to the IMF Extended Fund Facility (EFF) and Extended Credit Facility (ECF);
(e) All procurement documents relating to advisers or consultants engaged for the privatisation process;
(f) Any Cabinet Memoranda, Sessional Papers, or policy documents that form the basis for privatising KPC.
(g) All parliamentary reports, approvals, or resolutions relied upon.
(h) Any valuation reports, transaction advisories, or financial modelling concerning KPC.
(i) Any reports on the national security or public interest impact of privatising KPC.
4) THAT in default of compliance, this Honourable Court be pleased to draw adverse inferences pursuant to Article 35 of the Constitution and Sections 4, 6, and 14 of the Access to Information Act, 2016.
5) THAT an order suspending/staying the Privatisation Act, 2025 pending the hearing and determination of the application and of the petition.
6) THAT this constitutional petition dated 30th December 2025, be and is hereby certified as raising substantial questions of law pursuant to Article 165(4) of the Constitution of Kenya.
7) THAT the said petition be and is hereby referred to the Honourable the Chief Justice for the empanelment of an uneven number of judges, being not less than three, to hear and determine the same.
8) THAT the inter-partes hearing of this application, if necessary, be expedited to facilitate the timely resolution of the petition on its merits.
9) THAT this Honourable Court issue such further, consequential, or ancillary orders as may be necessary to give effect to and safeguard the efficacy of the conservatory orders issued.
10) THAT costs be in the cause.
3. The 2 nd Respondent has filed grounds of opposition dated 13 th January 2026. It is urged that the threshold for certification under Article 165 (3) (b) and (d) and (4) of the Constitution was not met as the issues raised in the Petition form part of the ordinary litigation before superior courts and the Court had occasion to rule on them in Orange Democratic Movement Party & 4otheres versus The Speaker of the National Assembly & 5 Others [2024] KEHC 11494 (KLR) . Subsequently on 23 rd February 2026 the 2 nd Respondent filed Notice of Preliminary Objection dated 23 rd February 2026 in which the Petition and proceedings herein were challenged as being res judicata as all the subject issues have been determined in Orange Democratic Movement Part & 4 Others versus The Speaker of the National Assembly and 5 Others [2024] KEHC 11494 (KLR); Nairobi HCPT E517 of 2025 as consolidated with HCHRPET. Nos. E546 of 2025 & E661 of 2025; Nairobi HCPT E714 of 2025; and Nairobi HCPT E747 of 2025.
4. The 5 th Respondent, through its Managing Director, Joe Kimutai Sang, has sworn an affidavit on 15th January 2026 and 12th March 2026, opposing both the application for empanelment and issuance of conservatory orders, urging that the applicants have not satisfied the constitutional threshold for both empanelment and issuance of the orders as sought.
5. Similarly, the 7th Respondent filed grounds of opposition opposing the request for empanelment and issuance of conservatory orders, urging that the Petitioners have not surmounted the legal threshold and further that the issues have been determined in previous litigation. and that in any event the Constitutional. It is further argued that the impugned statute enjoys a presumption of constitutionality that has not been rebutted by the Petitioners.
6. The Application and the preliminary objection were heard contemporaneously and canvassed via written submissions.
SUMMARY OF THE PETITIONER’S SUBMISSIONS
7. The Petitioners’ submissions are dated 12 January 2026, 18 March 2026, 31 March 2026, and 7 April 2026. They submit that the Attorney  General’s plea of res judicata is unsustainable considering the binding authority of the Supreme Court in John Florence Maritime Services Limited & another v Cabinet Secretary, Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) . They emphasise that the Supreme Court held that res judicata must be invoked sparingly in constitutional litigation and only in the clearest of cases, because constitutional rights “evolve, mutate, and assume multifaceted dimensions.” They submit that none of the earlier decisions, including Orange Democratic Movement Party & 4 Others v Speaker of the National Assembly & 5 Others [2024] KEHC 11494 (KLR), Petition No. E517 of 2025 (consolidated), Petition No. E714 of 2025, or Petition No. E747 of 2025 determined the core issues now before this Court: the per se constitutionality of privatisation, the constitutionality of the Privatisation Act, 2005 and Privatisation Act, 2025, the validity of Gazette Notice No. 8739 of 14 August 2009, the IMF  driven conditionalities, the PFMA  based prohibition on asset liquidation, the irregular 2025 re  appointments, or the Kshs. 97 billion financial anomaly.
8. It is submitted that under Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, the Attorney General’s objection is not a pure point of law and cannot be sustained.
9. On empanelment, the Petitioners rely on a number of decisions including the decision of the Indian Supreme Court in Sir Chunilal V. Mehta & Sons Ltd v Century Spinning & Manufacturing Co. Ltd, Hero Vinoth v Seshammal, Santosh Hazari v Purushottam Tiwari (2001) 3 SCC 179 , and the Kenyan decisions in Gachagua v Speaker of the National Assembly & 3 others (Petition E522 of 2024) [2024] KEHC 12075 (KLR ), Philomena Mbete Mwilu v DPP & Others [2018] KEHC 3432 (KLR ), Kinyanjui v Attorney General & another; Omollo & 18 others (Interested Parties) [2012] KEHC 5411 (KLR), and Okiya Omtatah Okoiti & 4 Others v Attorney General & Others [2019] eKLR .
10. They further rely on the Court of Appeal’s “ultimate test” in Okiya Omtatah Okoiti & another v Anne Waiguru – Cabinet Secretary, Devolution and Planning & 3 others [2017] KECA 679 (KLR), drawing from Hermanus Phillipus Steyn v Giovanni Gnechi ‑ Ruscone [2013] eKLR . The Petitioners argue that the issues raised, sovereignty under Article 1, external economic coercion under Article 2(6), national values under Article 10, public trust under Articles 73 and 129, public finance under Articles 201, 214, 220, and national security under Article 238, are novel, complex, unsettled, and of profound public importance, thereby meeting and surpassing the threshold for certification under Article 165(4).
11. Finally, the Petitioners submit that empanelment is necessary to ensure jurisprudential stability and public confidence. They submit that decisions of multi ‑ judge benches carry greater jurisprudential weight in matters of national consequence.
SUMMARY OF THE 2 ND RESPONDENT’S SUBMISSIONS
12. The Attorney ‑ General anchors the preliminary objection on the doctrine of res judicata , asserting that every issue raised in this Petition has already been heard and finally determined in a series of prior decisions of courts of competent and concurrent jurisdiction. The 2 nd respondents lists these as Orange Democratic Movement Party & 4 Others v Speaker of the National Assembly & 5 Others [2024] KEHC 11494 (KLR) , Nairobi HCPT E517 of 2025 (consolidated with E546/2025 & E661/2025) , Nairobi HCPT E714 of 2025 , and Nairobi HCPT E747 of 2025, all culminating in judgments delivered on 19th February 2026. These decisions, it is argued, conclusively addressed the constitutionality of the Privatisation Act, 2025, the legality of the KPC privatisation process, the adequacy of public participation, national ‑ security concerns, fiscal ‑ prudence objections, and the validity of Gazette Notice No. 8739 of 14th August 2009.
13. The 2 nd respondent further relies on Wamunyinyi v Cabinet Secretary, Ministry of Treasury & Economic Planning & 3 others; Manyonge & 3 others (Interested Parties) (Petition E146 of 2025) [2025] KEHC 8542 (KLR ), Mumira v Attorney General [2022] KEHC 271 (KLR), Okiya Omtatah v Communication Authority of Kenya (2015) eKLR , and the Supreme Court’s holding in Kenya Hotel Properties Limited v Attorney General & 5 others [2022] KESC 62 (KLR) , the AG contends that the petitioners cannot present previously determined issues under new phrasing or new petitioners. The 2 nd respondent therefore characterises the present petition as an abuse of court process, falling squarely within the category of matters that courts must decline to entertain to preserve judicial integrity as provided for under Rule 3(8) of the Mutunga rules.
14. On the question of empanelment under Article 165(4), the Attorney ‑ General submits that the petition does not raise any “substantial question of law” warranting referral to the Chief Justice. He relies on Okiya Omtatah Okoiti & another v Anne Waiguru – Cabinet Secretary, Devolution and Planning & 3 others [2017] eKLR , which adopted the Supreme Court’s principles in Hermanus Phillipus Steyn v Giovanni Gnechi ‑ Ruscone [2013] eKLR , and on the High Court’s guidance in Wycliffe Ambetsa Oparanya & 2 others v Director of Public Prosecutions & another [2016] eKLR, Amos Kiumo & 2 others v Cabinet Secretary, Ministry of Interior [2014] eKLR , and Kibunja v Attorney ‑ General & 12 Others (No. 2) [2002] 2 KLR 6 . The AG argues that the petitioners have not demonstrated any legal uncertainty, novelty, complexity, or unsettled constitutional terrain. Instead, the issues raised, public participation, oversight, fiscal prudence, national security, and the scope of executive discretion, are routine constitutional questions already settled by precedent, including the Supreme Court’s decision in British American Tobacco Kenya, PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party) (Petition 5 of 2017) [2019] KESC 15 (KLR) . The 2 nd respondent therefore insists that empanelment would serve no jurisprudential purpose and would only prolong litigation already resolved by courts of equal jurisdiction.
15. Finally, it is submitted that the petitioners’ prayers for conservatory relief have been overtaken by events, noting that Kenya Pipeline Company Limited was officially listed on the Nairobi Securities Exchange on 10th March 2026, rendering the matter moot. He cites the Court of Appeal’s articulation of the doctrine of mootness in National Assembly v Gikonyo & 9 others (Civil Appeal E884 & E868 of 2024 (Consolidated)) [2026] KECA 214 (KLR) , and the Supreme Court’s guidance in Dande & 3 Others v Inspector General, National Police Service & 5 Others (Petition 6(E007) 4 (E005) & (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) , emphasising that courts should not act in vain or adjudicate academic controversies.
SUMMARY OF THE 5 TH RESPONDENTS SUBMISSIONS
16. The 5th Respondent’s submissions are dated 17 th March 2026. It is submitted that the Petitioners seek to reopen constitutional questions already conclusively adjudicated in Consumers Federation of Kenya & Others v Kenya Pipeline Company & Others (Petition E517 of 2025 ) and Transparency International Kenya & Others v Attorney General & Others (Petition E747 of 2025) . In those decisions, the High Court upheld both the constitutionality of the Privatisation Act, 2025 and the legality of the KPC privatisation process, issuing judgments in rem that bind all subsequent litigants raising identical issues. Relying on Wamunyinyi v Cabinet Secretary, National Treasury & Economic Planning & 3 Others; Manyonge & 3 Others (Interested Parties) [2025] KEHC 8542 (KLR) and John Florence Maritime Services Ltd v Cabinet Secretary for Transport & Infrastructure & 3 Others [2021] KESC 39 (KLR) , the Respondent argues that the present Petition is barred by issue estoppel, constitutes an abuse of process, and offends the constitutional principle of finality in litigation.
17. On certification under Article 165(4), the 5th Respondent submits that the Petition raises no “substantial question of law” within the meaning articulated in Okiya Omtatah Okoiti & Another v Anne Waiguru – Cabinet Secretary, Devolution & Planning & 3 Others [2017] eKLR , Hermanus Phillipus Steyn v Giovanni Gnechi ‑ Ruscone [2013] eKLR , and Sir Chunilal V. Mehta & Sons Ltd v Century Spinning & Manufacturing Co. Ltd, Hero Vinoth v Seshammal, Santosh Hazari v Purushottam Tiwari (2001) 3 SCC 179 . The issues, public participation, fiscal policy, the structure of the Privatisation Authority, and the legality of Gazette Notice No. 8739 of 2009, have already been settled by binding precedent and do not present any legal uncertainty, novelty, or complexity warranting empanelment. The Respondent characterises the application as an attempt to secure a different bench rather than a genuine invocation of constitutional complexity, contrary to the judicial caution expressed in Kibunja v Attorney General & 12 Others (No. 2) [2002] 2 KLR 6 and Amos Kiumo & 2 Others v Cabinet Secretary, Ministry of Interior & Coordination of National Government & 3 Others [2014] eKLR .
18. Finally, the Respondent argues that the Petition is moot, noting that the KPC IPO has closed, shares have been allotted, and trading has commenced on the Nairobi Securities Exchange. Citing National Assembly v Gikonyo & 9 Others (Civil Appeal E884 & E868 of 2024 (Consolidated)) [2026] KECA 214 (KLR) , Daniel Kaminja & 3 Others v County Government of Nairobi [2019] eKLR, and Okiya Omtatah Okoiti & 2 Others v Attorney General & 4 Others [2020] eKLR , the Respondent contends that courts do not issue orders in abstract or attempt to restrain completed acts. Any attempt to unwind the IPO would unlawfully interfere with vested proprietary rights under Article 40 of the Constitution and disrupt regulated capital  markets processes overseen by the Capital Markets Authority. The Respondent therefore urges dismissal of both the Application and the Petition, emphasising that the allegations rest on misinterpretations of accounting principles, misunderstandings of legislative procedure, and constitutional questions already answered by the Court.
SUMMARY OF THE 7 th RESPONDENT’S SUBMISSIONS
19. The 7th Respondent’s submissions are dated 23 rd March 2026. Similarly, it is urged that there are final judgments in Petition No. E714 of 2025, Eliud Karanja Matindi v The National Assembly & Others ; Petition No. E747 of 2025, Transparency International & Others v The Attorney General & Others ; and Petition No. E517 of 2025 (as consolidated with Petitions E546 & E661 of 2025) , Consumer Federation of Kenya (COFEK) & Others v Kenya Pipeline Company & Others . These decisions, delivered in rem , conclusively determined the constitutionality of the Privatisation Act, 2025 and the KPC privatisation process. The Respondent therefore submits that the Petitioners’ attempt to reopen issues already adjudicated violates the doctrine of finality and squarely meets the threshold of a proper preliminary objection as articulated in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 .
20. On conservatory relief, the 7th Respondent relies on the Supreme Court’s authoritative test in Munya v Kithinji & 2 others (Application 5 of 2014) [2014] KESC 30 (KLR) , emphasising that conservatory orders are grounded in public ‑ law considerations, constitutional values, proportionality, and public interest, not private hardship. The Respondent argues that the Petitioners have failed to establish a prima facie case, noting that the KPC privatisation has already been completed and the company listed on the Nairobi Securities Exchange, rendering the prayers moot. The Respondent further cites Kevin K. Mwiti & others v Kenya School of Law & others [2015] eKLR to underscore that a prima facie case must disclose arguable constitutional issues, which the Petitioners have not demonstrated in light of binding prior determinations.
21. On the nugatory aspect, the Respondent while relying on Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227 submits that the Petition remains fully capable of adjudication without conservatory orders. The IPO has concluded, proprietary rights have vested in third  party investors, and the Court cannot issue orders in vain. The Respondent stresses that the Petitioners’ grievances do not risk frustration of the substantive hearing, and that the Court retains full remedial authority at final determination. The Respondent also invokes the doctrine of issue estoppel, arguing that the Petitioners’ claims mirror those already adjudicated and are therefore barred.
22. On public interest, the Respondent submits that constitutional litigation must respect institutional boundaries and the doctrine of separation of powers. Citing Hamdard Dawakhana v Union of India AIR (1960) 554 and Dock Workers Union & another v Portside Freight Terminals Limited & 10 others [2024] KESC 35 (KLR), the Respondent argues that public interest lies in upholding statutes enacted by Parliament, respecting judicial finality, and avoiding disruption of settled economic processes. The Respondent therefore urges dismissal of the Application dated 30th December 2025, asserting that the Petitioners have not met any of the three mandatory conditions for conservatory relief and that the application constitutes an abuse of the Court’s process.
ANALYSIS AND DETERMINATION
23. Emerging from the above I frame the following as the issues for determination,
1) Whether the Petition is res judicata ?
2) Whether the Petition is moot?
3) Arising from (1) and (2) whether the matter should be certified for empanelment?
4) Whether the threshold for grant of conservatory orders has been met?
5) What is the appropriate order on costs?
24. The first two issues are threshold issues, and if the application falters on either, the consequence is the disposal of not only the Notice of Motion but the Petition too. This then demands that they be resolved at the outset. The Respondents contend that the issues raised by the Petitioners in the current Petition are res judicata and on this account, the Court ought to down its tools.
25. The substantive law on res judicata is found in Section 7 of the Civil Procedure Act, which provides that:
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.
26. The Act has further expounded on the principle setting out under explanations 1-6 thus:
Explanation (1) —The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.
Explanation (2) —For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.
Explanation (3) —The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation (4)—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation (5) — Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.
Explanation (6)—Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
27. In the case of John Florence Maritime Services Limited & another vs Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021]KESC 39 (KLR) (Civ) (6August 2021) (Judgment ), the Supreme Court delved into an in-depth discussion of the concept of res judicata thus:
This court in the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another Motion No 42 of 2014 [2016] eKLR (Muiri Coffee case) held as follows regarding the doctrine of res judicata :
Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights...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.
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. 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 to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.”
…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…
28. The principle of res judicata stands as a constitutional guardrail against perpetual litigation, insisting that parties bring their full strength, their whole case, and every argument that might and ought to have been raised in the first instance. Thereby ensuring that justice is not an endless loop. The principle insists that once a competent court has spoken, the matter cannot be resurrected under new labels or dressed in the garb of public interest to secure a second bite at the apple. Explanation Note 4 above states that ‘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’. This includes cases presented in public interest.
29. In the case of Siri Ram Kaura v M.J.E. Morgan, CA 71/1960 (1961) EA 462 as cited in the case of Kennedy Mokua Ongiri v John Nyasende Mosioma & Florence Nyamoita Nyasende [2022] eKLR, the EACA stated that:
The mere discovery of fresh evidence (as distinguished from the development of fresh circumstances) on matters which have been open for controversy in the earlier proceedings is no answer to a defence of res judicata...
The law with regard to res judicata is that it is not the case, and it would be intolerable if it were the case, that a party who has been unsuccessful in litigation can be allowed to re-open that litigation merely by saying, that since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up the same relief which I asked for before, but it being in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should be allowed to commence a new litigation merely upon the allegation of this additional fact. The only way in which that could possibly be admitted would be if the litigant were prepared to say, I will show that this is a fact which entirely changes, the aspect of the case, and I will show you further that it was not, and could not by reasonable diligence have ascertained by me before…
The point is not whether the respondent was badly advised in bringing the first application prematurely; but whether he has since discovered a fact which entirely changes the aspect of the case and which could not have been discovered with reasonable diligence when he made his first application.
It is therefore not permissible for parties to evade the application of Res judicata by simply conjuring parties or issues with a view to giving the case a difference of complexion from the one that was given in the former suit.
30. This Court is therefore called upon to examine the issues in the Petition now presented against those previously decided and determine whether this petition survives that scrutiny. In response to the charge that the Petition is res judicata the applicant enumerates the novel distinguishing factors to be; that this Petition attacks the constitutional
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2. The Application seeks the following orders-
1) Spent
2) THAT pending the inter partes hearing and determination of this application, and/or pending the hearing and determination of the petition herein, the Honourable Court be pleased to issue a conservatory order restraining the respondents, their agents, servants, employees, or any person acting under their authority, from:
(a) Taking any further process, steps decision, agreement, contract, policy, transaction, and approval, to implement, operationalise, or execute the privatisation of the Kenya Pipeline Company (KPC) Limited, including but not limited to:
(i) the appointment or engagement of transaction advisers, legal advisers, investment banks, brokers, or public relations firms;
(ii) the valuation of KPC, the valuation of shares, the structuring of an Initial Public Offering, or the marketing and sale of any shares;
(iii) preparation, approval, or issuance of any prospectus or information memorandum;
(iv) listing or intended listing of KPC shares through an Initial Public Offering (IPO);
(v) sale, transfer, dilution, or disposal of any shares or interests in KPC; and
(vi) any preparatory, ancillary, or consequential acts connected thereto.
(b) Using any public funds, or committing the National Treasury, to finance, promote, or otherwise enable the privatisation process for KPC.
(c) Undertaking, continuing, financing, facilitating, or implementing the privatisation of KPC in any manner whatsoever.
(d) Issuing any public notices, calls for bids, or communications that would advance the privatisation of KPC.
(e) Taking any steps that may alter the ownership, control, legal status, governance structure, or strategic character of the Kenya Pipeline Company Limited.
3) THAT pending the hearing and determination of this application on an inter partes basis, this Honourable Court be pleased to issue a mandatory interim order compelling the 1st, 2nd, 3 rd and 4th Respondents, within seven (7) days, to file in Court and serve upon the petitioners certified copies of the following documents and information relating to the ongoing privatisation of KPC:
(a) All valuation reports, feasibility studies, transaction structures, and financial models;
(b) All Cabinet memoranda, approvals, policy papers, and briefing notes;
(c) The complete International Monetary Fund Country Report No. 24/316 and all Letters of Intent, Memoranda of Understanding, side agreements. correspondence, Letters of Intent, Memoranda of Understanding, or undertakings between the Government of Kenya and the International Monetary Fund (IMF) relating to privatisation of State Corporations;
(d) All reports or reviews of State Corporations conducted pursuant to the IMF Extended Fund Facility (EFF) and Extended Credit Facility (ECF);
(e) All procurement documents relating to advisers or consultants engaged for the privatisation process;
(f) Any Cabinet Memoranda, Sessional Papers, or policy documents that form the basis for privatising KPC.
(g) All parliamentary reports, approvals, or resolutions relied upon.
(h) Any valuation reports, transaction advisories, or financial modelling concerning KPC.
(i) Any reports on the national security or public interest impact of privatising KPC.
4) THAT in default of compliance, this Honourable Court be pleased to draw adverse inferences pursuant to Article 35 of the Constitution and Sections 4, 6, and 14 of the Access to Information Act, 2016.
5) THAT an order suspending/staying the Privatisation Act, 2025 pending the hearing and determination of the application and of the petition.
6) THAT this constitutional petition dated 30th December 2025, be and is hereby certified as raising substantial questions of law pursuant to Article 165(4) of the Constitution of Kenya.
7) THAT the said petition be and is hereby referred to the Honourable the Chief Justice for the empanelment of an uneven number of judges, being not less than three, to hear and determine the same.
8) THAT the inter-partes hearing of this application, if necessary, be expedited to facilitate the timely resolution of the petition on its merits.
9) THAT this Honourable Court issue such further, consequential, or ancillary orders as may be necessary to give effect to and safeguard the efficacy of the conservatory orders issued.
10) THAT costs be in the cause.
3. The 2 nd Respondent has filed grounds of opposition dated 13 th January 2026. It is urged that the threshold for certification under Article 165 (3) (b) and (d) and (4) of the Constitution was not met as the issues raised in the Petition form part of the ordinary litigation before superior courts and the Court had occasion to rule on them in Orange Democratic Movement Party & 4otheres versus The Speaker of the National Assembly & 5 Others [2024] KEHC 11494 (KLR) . Subsequently on 23 rd February 2026 the 2 nd Respondent filed Notice of Preliminary Objection dated 23 rd February 2026 in which the Petition and proceedings herein were challenged as being res judicata as all the subject issues have been determined in Orange Democratic Movement Part & 4 Others versus The Speaker of the National Assembly and 5 Others [2024] KEHC 11494 (KLR); Nairobi HCPT E517 of 2025 as consolidated with HCHRPET. Nos. E546 of 2025 & E661 of 2025; Nairobi HCPT E714 of 2025; and Nairobi HCPT E747 of 2025.
4. The 5 th Respondent, through its Managing Director, Joe Kimutai Sang, has sworn an affidavit on 15th January 2026 and 12th March 2026, opposing both the application for empanelment and issuance of conservatory orders, urging that the applicants have not satisfied the constitutional threshold for both empanelment and issuance of the orders as sought.
5. Similarly, the 7th Respondent filed grounds of opposition opposing the request for empanelment and issuance of conservatory orders, urging that the Petitioners have not surmounted the legal threshold and further that the issues have been determined in previous litigation. and that in any event the Constitutional. It is further argued that the impugned statute enjoys a presumption of constitutionality that has not been rebutted by the Petitioners.
6. The Application and the preliminary objection were heard contemporaneously and canvassed via written submissions.
SUMMARY OF THE PETITIONER’S SUBMISSIONS
7. The Petitioners’ submissions are dated 12 January 2026, 18 March 2026, 31 March 2026, and 7 April 2026. They submit that the Attorney  General’s plea of res judicata is unsustainable considering the binding authority of the Supreme Court in John Florence Maritime Services Limited & another v Cabinet Secretary, Transport & Infrastructure & 3 others [2021] KESC 39 (KLR) . They emphasise that the Supreme Court held that res judicata must be invoked sparingly in constitutional litigation and only in the clearest of cases, because constitutional rights “evolve, mutate, and assume multifaceted dimensions.” They submit that none of the earlier decisions, including Orange Democratic Movement Party & 4 Others v Speaker of the National Assembly & 5 Others [2024] KEHC 11494 (KLR), Petition No. E517 of 2025 (consolidated), Petition No. E714 of 2025, or Petition No. E747 of 2025 determined the core issues now before this Court: the per se constitutionality of privatisation, the constitutionality of the Privatisation Act, 2005 and Privatisation Act, 2025, the validity of Gazette Notice No. 8739 of 14 August 2009, the IMF  driven conditionalities, the PFMA  based prohibition on asset liquidation, the irregular 2025 re  appointments, or the Kshs. 97 billion financial anomaly.
8. It is submitted that under Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, the Attorney General’s objection is not a pure point of law and cannot be sustained.
9. On empanelment, the Petitioners rely on a number of decisions including the decision of the Indian Supreme Court in Sir Chunilal V. Mehta & Sons Ltd v Century Spinning & Manufacturing Co. Ltd, Hero Vinoth v Seshammal, Santosh Hazari v Purushottam Tiwari (2001) 3 SCC 179 , and the Kenyan decisions in Gachagua v Speaker of the National Assembly & 3 others (Petition E522 of 2024) [2024] KEHC 12075 (KLR ), Philomena Mbete Mwilu v DPP & Others [2018] KEHC 3432 (KLR ), Kinyanjui v Attorney General & another; Omollo & 18 others (Interested Parties) [2012] KEHC 5411 (KLR), and Okiya Omtatah Okoiti & 4 Others v Attorney General & Others [2019] eKLR .
10. They further rely on the Court of Appeal’s “ultimate test” in Okiya Omtatah Okoiti & another v Anne Waiguru – Cabinet Secretary, Devolution and Planning & 3 others [2017] KECA 679 (KLR), drawing from Hermanus Phillipus Steyn v Giovanni Gnechi ‑ Ruscone [2013] eKLR . The Petitioners argue that the issues raised, sovereignty under Article 1, external economic coercion under Article 2(6), national values under Article 10, public trust under Articles 73 and 129, public finance under Articles 201, 214, 220, and national security under Article 238, are novel, complex, unsettled, and of profound public importance, thereby meeting and surpassing the threshold for certification under Article 165(4).
11. Finally, the Petitioners submit that empanelment is necessary to ensure jurisprudential stability and public confidence. They submit that decisions of multi ‑ judge benches carry greater jurisprudential weight in matters of national consequence.
SUMMARY OF THE 2 ND RESPONDENT’S SUBMISSIONS
12. The Attorney ‑ General anchors the preliminary objection on the doctrine of res judicata , asserting that every issue raised in this Petition has already been heard and finally determined in a series of prior decisions of courts of competent and concurrent jurisdiction. The 2 nd respondents lists these as Orange Democratic Movement Party & 4 Others v Speaker of the National Assembly & 5 Others [2024] KEHC 11494 (KLR) , Nairobi HCPT E517 of 2025 (consolidated with E546/2025 & E661/2025) , Nairobi HCPT E714 of 2025 , and Nairobi HCPT E747 of 2025, all culminating in judgments delivered on 19th February 2026. These decisions, it is argued, conclusively addressed the constitutionality of the Privatisation Act, 2025, the legality of the KPC privatisation process, the adequacy of public participation, national ‑ security concerns, fiscal ‑ prudence objections, and the validity of Gazette Notice No. 8739 of 14th August 2009.
13. The 2 nd respondent further relies on Wamunyinyi v Cabinet Secretary, Ministry of Treasury & Economic Planning & 3 others; Manyonge & 3 others (Interested Parties) (Petition E146 of 2025) [2025] KEHC 8542 (KLR ), Mumira v Attorney General [2022] KEHC 271 (KLR), Okiya Omtatah v Communication Authority of Kenya (2015) eKLR , and the Supreme Court’s holding in Kenya Hotel Properties Limited v Attorney General & 5 others [2022] KESC 62 (KLR) , the AG contends that the petitioners cannot present previously determined issues under new phrasing or new petitioners. The 2 nd respondent therefore characterises the present petition as an abuse of court process, falling squarely within the category of matters that courts must decline to entertain to preserve judicial integrity as provided for under Rule 3(8) of the Mutunga rules.
14. On the question of empanelment under Article 165(4), the Attorney ‑ General submits that the petition does not raise any “substantial question of law” warranting referral to the Chief Justice. He relies on Okiya Omtatah Okoiti & another v Anne Waiguru – Cabinet Secretary, Devolution and Planning & 3 others [2017] eKLR , which adopted the Supreme Court’s principles in Hermanus Phillipus Steyn v Giovanni Gnechi ‑ Ruscone [2013] eKLR , and on the High Court’s guidance in Wycliffe Ambetsa Oparanya & 2 others v Director of Public Prosecutions & another [2016] eKLR, Amos Kiumo & 2 others v Cabinet Secretary, Ministry of Interior [2014] eKLR , and Kibunja v Attorney ‑ General & 12 Others (No. 2) [2002] 2 KLR 6 . The AG argues that the petitioners have not demonstrated any legal uncertainty, novelty, complexity, or unsettled constitutional terrain. Instead, the issues raised, public participation, oversight, fiscal prudence, national security, and the scope of executive discretion, are routine constitutional questions already settled by precedent, including the Supreme Court’s decision in British American Tobacco Kenya, PLC v Cabinet Secretary for the Ministry of Health & 2 others; Kenya Tobacco Control Alliance & another (Interested Parties); Mastermind Tobacco Kenya Limited (Affected Party) (Petition 5 of 2017) [2019] KESC 15 (KLR) . The 2 nd respondent therefore insists that empanelment would serve no jurisprudential purpose and would only prolong litigation already resolved by courts of equal jurisdiction.
15. Finally, it is submitted that the petitioners’ prayers for conservatory relief have been overtaken by events, noting that Kenya Pipeline Company Limited was officially listed on the Nairobi Securities Exchange on 10th March 2026, rendering the matter moot. He cites the Court of Appeal’s articulation of the doctrine of mootness in National Assembly v Gikonyo & 9 others (Civil Appeal E884 & E868 of 2024 (Consolidated)) [2026] KECA 214 (KLR) , and the Supreme Court’s guidance in Dande & 3 Others v Inspector General, National Police Service & 5 Others (Petition 6(E007) 4 (E005) & (E010) of 2022 (Consolidated)) [2023] KESC 40 (KLR) , emphasising that courts should not act in vain or adjudicate academic controversies.
SUMMARY OF THE 5 TH RESPONDENTS SUBMISSIONS
16. The 5th Respondent’s submissions are dated 17 th March 2026. It is submitted that the Petitioners seek to reopen constitutional questions already conclusively adjudicated in Consumers Federation of Kenya & Others v Kenya Pipeline Company & Others (Petition E517 of 2025 ) and Transparency International Kenya & Others v Attorney General & Others (Petition E747 of 2025) . In those decisions, the High Court upheld both the constitutionality of the Privatisation Act, 2025 and the legality of the KPC privatisation process, issuing judgments in rem that bind all subsequent litigants raising identical issues. Relying on Wamunyinyi v Cabinet Secretary, National Treasury & Economic Planning & 3 Others; Manyonge & 3 Others (Interested Parties) [2025] KEHC 8542 (KLR) and John Florence Maritime Services Ltd v Cabinet Secretary for Transport & Infrastructure & 3 Others [2021] KESC 39 (KLR) , the Respondent argues that the present Petition is barred by issue estoppel, constitutes an abuse of process, and offends the constitutional principle of finality in litigation.
17. On certification under Article 165(4), the 5th Respondent submits that the Petition raises no “substantial question of law” within the meaning articulated in Okiya Omtatah Okoiti & Another v Anne Waiguru – Cabinet Secretary, Devolution & Planning & 3 Others [2017] eKLR , Hermanus Phillipus Steyn v Giovanni Gnechi ‑ Ruscone [2013] eKLR , and Sir Chunilal V. Mehta & Sons Ltd v Century Spinning & Manufacturing Co. Ltd, Hero Vinoth v Seshammal, Santosh Hazari v Purushottam Tiwari (2001) 3 SCC 179 . The issues, public participation, fiscal policy, the structure of the Privatisation Authority, and the legality of Gazette Notice No. 8739 of 2009, have already been settled by binding precedent and do not present any legal uncertainty, novelty, or complexity warranting empanelment. The Respondent characterises the application as an attempt to secure a different bench rather than a genuine invocation of constitutional complexity, contrary to the judicial caution expressed in Kibunja v Attorney General & 12 Others (No. 2) [2002] 2 KLR 6 and Amos Kiumo & 2 Others v Cabinet Secretary, Ministry of Interior & Coordination of National Government & 3 Others [2014] eKLR .
18. Finally, the Respondent argues that the Petition is moot, noting that the KPC IPO has closed, shares have been allotted, and trading has commenced on the Nairobi Securities Exchange. Citing National Assembly v Gikonyo & 9 Others (Civil Appeal E884 & E868 of 2024 (Consolidated)) [2026] KECA 214 (KLR) , Daniel Kaminja & 3 Others v County Government of Nairobi [2019] eKLR, and Okiya Omtatah Okoiti & 2 Others v Attorney General & 4 Others [2020] eKLR , the Respondent contends that courts do not issue orders in abstract or attempt to restrain completed acts. Any attempt to unwind the IPO would unlawfully interfere with vested proprietary rights under Article 40 of the Constitution and disrupt regulated capital  markets processes overseen by the Capital Markets Authority. The Respondent therefore urges dismissal of both the Application and the Petition, emphasising that the allegations rest on misinterpretations of accounting principles, misunderstandings of legislative procedure, and constitutional questions already answered by the Court.
SUMMARY OF THE 7 th RESPONDENT’S SUBMISSIONS
19. The 7th Respondent’s submissions are dated 23 rd March 2026. Similarly, it is urged that there are final judgments in Petition No. E714 of 2025, Eliud Karanja Matindi v The National Assembly & Others ; Petition No. E747 of 2025, Transparency International & Others v The Attorney General & Others ; and Petition No. E517 of 2025 (as consolidated with Petitions E546 & E661 of 2025) , Consumer Federation of Kenya (COFEK) & Others v Kenya Pipeline Company & Others . These decisions, delivered in rem , conclusively determined the constitutionality of the Privatisation Act, 2025 and the KPC privatisation process. The Respondent therefore submits that the Petitioners’ attempt to reopen issues already adjudicated violates the doctrine of finality and squarely meets the threshold of a proper preliminary objection as articulated in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 .
20. On conservatory relief, the 7th Respondent relies on the Supreme Court’s authoritative test in Munya v Kithinji & 2 others (Application 5 of 2014) [2014] KESC 30 (KLR) , emphasising that conservatory orders are grounded in public ‑ law considerations, constitutional values, proportionality, and public interest, not private hardship. The Respondent argues that the Petitioners have failed to establish a prima facie case, noting that the KPC privatisation has already been completed and the company listed on the Nairobi Securities Exchange, rendering the prayers moot. The Respondent further cites Kevin K. Mwiti & others v Kenya School of Law & others [2015] eKLR to underscore that a prima facie case must disclose arguable constitutional issues, which the Petitioners have not demonstrated in light of binding prior determinations.
21. On the nugatory aspect, the Respondent while relying on Reliance Bank Ltd v Norlake Investments Ltd [2002] 1 EA 227 submits that the Petition remains fully capable of adjudication without conservatory orders. The IPO has concluded, proprietary rights have vested in third  party investors, and the Court cannot issue orders in vain. The Respondent stresses that the Petitioners’ grievances do not risk frustration of the substantive hearing, and that the Court retains full remedial authority at final determination. The Respondent also invokes the doctrine of issue estoppel, arguing that the Petitioners’ claims mirror those already adjudicated and are therefore barred.
22. On public interest, the Respondent submits that constitutional litigation must respect institutional boundaries and the doctrine of separation of powers. Citing Hamdard Dawakhana v Union of India AIR (1960) 554 and Dock Workers Union & another v Portside Freight Terminals Limited & 10 others [2024] KESC 35 (KLR), the Respondent argues that public interest lies in upholding statutes enacted by Parliament, respecting judicial finality, and avoiding disruption of settled economic processes. The Respondent therefore urges dismissal of the Application dated 30th December 2025, asserting that the Petitioners have not met any of the three mandatory conditions for conservatory relief and that the application constitutes an abuse of the Court’s process.
ANALYSIS AND DETERMINATION
23. Emerging from the above I frame the following as the issues for determination,
1) Whether the Petition is res judicata ?
2) Whether the Petition is moot?
3) Arising from (1) and (2) whether the matter should be certified for empanelment?
4) Whether the threshold for grant of conservatory orders has been met?
5) What is the appropriate order on costs?
24. The first two issues are threshold issues, and if the application falters on either, the consequence is the disposal of not only the Notice of Motion but the Petition too. This then demands that they be resolved at the outset. The Respondents contend that the issues raised by the Petitioners in the current Petition are res judicata and on this account, the Court ought to down its tools.
25. The substantive law on res judicata is found in Section 7 of the Civil Procedure Act, which provides that:
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.
26. The Act has further expounded on the principle setting out under explanations 1-6 thus:
Explanation (1) —The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.
Explanation (2) —For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.
Explanation (3) —The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation (4)—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation (5) — Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.
Explanation (6)—Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
27. In the case of John Florence Maritime Services Limited & another vs Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021]KESC 39 (KLR) (Civ) (6August 2021) (Judgment ), the Supreme Court delved into an in-depth discussion of the concept of res judicata thus:
This court in the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another Motion No 42 of 2014 [2016] eKLR (Muiri Coffee case) held as follows regarding the doctrine of res judicata :
Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights...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.
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. 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 to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.”
…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…
28. The principle of res judicata stands as a constitutional guardrail against perpetual litigation, insisting that parties bring their full strength, their whole case, and every argument that might and ought to have been raised in the first instance. Thereby ensuring that justice is not an endless loop. The principle insists that once a competent court has spoken, the matter cannot be resurrected under new labels or dressed in the garb of public interest to secure a second bite at the apple. Explanation Note 4 above states that ‘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’. This includes cases presented in public interest.
29. In the case of Siri Ram Kaura v M.J.E. Morgan, CA 71/1960 (1961) EA 462 as cited in the case of Kennedy Mokua Ongiri v John Nyasende Mosioma & Florence Nyamoita Nyasende [2022] eKLR, the EACA stated that:
The mere discovery of fresh evidence (as distinguished from the development of fresh circumstances) on matters which have been open for controversy in the earlier proceedings is no answer to a defence of res judicata...
The law with regard to res judicata is that it is not the case, and it would be intolerable if it were the case, that a party who has been unsuccessful in litigation can be allowed to re-open that litigation merely by saying, that since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up the same relief which I asked for before, but it being in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should be allowed to commence a new litigation merely upon the allegation of this additional fact. The only way in which that could possibly be admitted would be if the litigant were prepared to say, I will show that this is a fact which entirely changes, the aspect of the case, and I will show you further that it was not, and could not by reasonable diligence have ascertained by me before…
The point is not whether the respondent was badly advised in bringing the first application prematurely; but whether he has since discovered a fact which entirely changes the aspect of the case and which could not have been discovered with reasonable diligence when he made his first application.
It is therefore not permissible for parties to evade the application of Res judicata by simply conjuring parties or issues with a view to giving the case a difference of complexion from the one that was given in the former suit.
30. This Court is therefore called upon to examine the issues in the Petition now presented against those previously decided and determine whether this petition survives that scrutiny. In response to the charge that the Petition is res judicata the applicant enumerates the novel distinguishing factors to be; that this Petition attacks the constitutional
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