1. What is pending before this court is the Applicant’s’ Originating Summons dated 14/10/2024 seeking the following orders;
a) This Honourable Court be pleased to make a declaration that the Respondents are vexatious litigants;
b) This Honourable Court be pleased to bar the Respondents from instituting proceedings against any person, particularly the Central Bank of Kenya and the National Bank of Kenya, without leave of the High Court; and
c) The costs of this Application be provided for.
2. The application is expressed to be brought under section 2(1) of the Vexatious Proceedings Act and Order 51, Rule 1 of the Civil Procedure Rules. 2010. Further, it is premised on the grounds on the face of it and the contents of the supporting affidavit sworn by State Counsel Christine Birundu.
3. In her affidavit, she stated that the Respondents initially filed two proceedings in the High Court, and thereafter proceeded on Appeal to the Court of Appeal (a record four times on the same issues against the same parties), in summary;
a) Eldoret High Court Civil Suit No. 115 of 1999 - Thomas Owen Ondieki v National Bank of Kenya (disposed in the 1st Respondent’s favour vide an undated and unsigned Judgment, which decision was later overturned on an appeal proffered by the 1st Interested Party).
b) Eldoret High Court Civil Suit No. 175 of 1999 - Thomas Owen Ondieki and Eddah Amakobe Ingutia v National Bank of Kenya Limited and Central Bank of Kenya (dismissed vide Judgment delivered on 2nd June 2011 for being res judicata).
c) Court of Appeal - Civil Appeal No. 182 of 2011 - Thomas Owen Ondieki and Eddah Amakobe Ingutia v National Bank of Kenya Limited and Central Bank of Kenya (dismissed vide Judgment delivered on 29th October 2015 for being res judicata).
d) Court of Appeal - Civil Application No. 23 of 2016 - Thomas Owen Ondieki and Eddah Amakobe Ingutia v National Bank of Kenya Limited and Central Bank of Kenya (the 1st Review Application dismissed vide Ruling delivered on 5th October 2017 for being res judicata).
e) Court of Appeal - Civil Application No. 4 of 2018 - Thomas Owen Ondieki and Eddah Amakobe Ingutia v National Bank of Kenya Limited and Central Bank of Kenya (the 2nd Review Application dismissed vide Ruling delivered on 19th March 2021 for being res judicata).
f) Court of Appeal - Civil Application No. 23 of 2021 - Thomas Owen Ondieki and Eddah Amakobe Ingutia v National Bank of Kenya Limited and Central Bank of Kenya (dismissed vide Ruling delivered on 16th December 2022 for being res judicata)
g) Eldoret High Court Miscellaneous Civil Application No. El 13 of 2023 - Thomas Owen Ondieki v Deputy Registrar High Court of Kenya at Eldoret and National Bank of Kenya Limited (dismissed vide Ruling delivered on 15th May 2024).
4. She pointed out that the Respondents have recently filed Eldoret Court of Appeal - Civil Application E036 of2024 - Thomas Owen Ondiek and Eddah Amakobe Ingutia v. National Bank of Kenya Limited and Central Bank of Kenya on the same matter against the same parties and on the same issues, which application is pending before the Court of Appeal at Eldoret.
5. She urged that it is clear that the Respondents have abused the court process by instituting multiple court proceedings on the same issues in several different courts involving the same parties, notwithstanding that the issues have been heard and determined and are therefore res judicata. Further, that in every instance, the Interested Parties were forced, and continue to be forced to file responses, make submissions and appear in Court to defend the same issues, which have already been determined several times both by the High Court and the Court of Appeal. She stated that these proceedings amount to an abuse of the Court process as the Respondents sought a different decision on the same matter as against the same parties and in the same courts i.e. the High Court and the Court of Appeal.
6. The deponent averred that it is only fair, just and in the interest of substantive justice that the application be allowed as the Applicant and Interested Parties are justifiably wary that the Respondents will file other baseless applications or suits on the same subject matter as against the same parties which the courts will have to hear and the Interested Parties will have no choice but to defend making it a waste of judicial time and other resources.
Replying Affidavit
7. In opposition to the application, the Respondents filed a Replying Affidavit dated 28/10/2024. The Replying Affidavit is quite lengthy and verbose and seeks to rely on the Record of Appeal in Case No. 116 of 2012. The Deponent laid out the history of the various matters filed in the various courts and urged the court to dismiss the application.
Hearing of the Application
8. The parties filed submissions on the application.
Applicants Submissions
9. Learned Counsel for the Applicant reproduced the definition of a Vexatious Litigant from The Blacks’ Law Dictionary, Tenth Edition at page 1075 where it defines a Vexatious Litigant as follows;
“A litigant who repeatedly files frivolously suits”
10. She additionally cited the case of Samuel Kahiu v Jacinta Akinyi Soso Assistant County Commissioner Iloodokilani Ward/Division & another [2018] KEHC 2654 (KLR) and the case of Attorney General v Meshack Ochieng t/a Mecko Enterprises [2019] KEHC 7050 (KLR). Counsel submitted that the law that governs vexatious proceedings in Kenya is the Vexatious Proceedings Act which was enacted to prevent abuse of the process of the High Court and other courts by the institution of vexatious legal proceedings. She reproduced the provisions of Section 2(1) of the Act and submitted that the Respondents begun their litigation in 1999 and over the course of 25 years they have persistently continued to institute different frivolous proceedings over the same matter and against the same parties. All the said proceedings have been found unmeritorious and consequently dismissed. She reiterated that the Respondents are vexatious litigants and should be declared as such by this Court.
11. On the right of access to justice, counsel cited Articles 48 and 50 of the Constitution of Kenya and further, submitted that Article 159 of the Constitution. Further, he posited that although the right to access of justice is guaranteed in the Constitution, it is not an absolute right and does not fall under the rights made absolute by Article 25 of the Constitution. That it can be reasonably limited in the case of a vexatious litigant, by the Vexatious Proceedings Act. as contemplated under Article 24 of the Constitution. She placed reliance on the decision in the case of Attorney General v Owako; Otieno, Yogo, Qjuro & Co Advocates & 6 others (Interested Parties) (Miscellaneous Civil Suit El63 of 2021 120231 KEHC 19858 (KLR) and the case of The High Court of South Africa, Mpumalanga Division (Middleburg Local Seat) Case Number 3542/2020 between Zenani France Sibanvoni v Executive Mayor of Nkanzala. District Municipality. Municipal Manager Nkangala, District Municipality, Stanford Mofore NO, Eskom Kusile Power Station and Engen Oil in support of this submission.
12. Counsel urged that although the right to access of justice by the Respondents will be limited, this limitation can be evaded by persuading a court or judge that the proceedings instituted or to be instituted will not constitute an abuse of the process of the court. In addition, the person can still appeal if not satisfied with the decision of the court or judge refusing him permission to institute legal proceedings. Additionally, that this limitation is reasonable and justifiable and in an open and democratic society as intended by the Constitution. Counsel urged that the Application is merited and should be allowed with costs.
Respondents’ Submissions
13. The Respondents filed submissions dated 12/03/2025 which was a reproduction of the contents of the affidavit. They questioned the judgements in Court File No. 115 of 1999 by Justice Nambuye and laid out the chronology of events surrounding said Judgement. That the said judgement was declared null and void by the Court of Appeal in Appeal No. 116 od 2012 and as such should not be considered a court record. They further stated that the decision in HCC No. 175 of 1999 was based on a Judgement that did not exist being HCCC No. 115 of 1999. They additionally disputed the authenticity if a Gazette Notice 8829 of 11/12/2003.
14. The Respondents stated that the law on vexatious orders are that a threshold of a minimum of 6 claims that were totally without merit must have been used to move a court of law. Further, that they only moved the court of appeal 5 times and the last time they appeared at the High Court, the same was on good grounds. They reiterated that the Justice Nambuye carried out judicial duties while actively appearing before the tribunal and therefore, the drafting of the Judgement in HCCC 115/99 between 23/03/2004 and the ruling she made one year after her suspension which decision they faulted, as according to them her pending decisions were to be held in abeyance or handed over to another Judicial Officer. They urged the court to dismiss the application with costs.
Interested Party’s Submissions
15. The interested party filed submissions dated 20/11/2025. They laid down the sequence of events with regards to the various matters filed by the Respondents and proceeded to submit on the issues for determination. As to whether the Respondents should be declared vexatious litigants, they submitted that while the law on vexatious proceedings is definitively set out in the Vexatious Proceedings Act, the said legislation does not offer a definition for the term “vexatious litigant”. They placed reliance on the holding of Muigai, J in Attorney General v Meshack Ochieng t/a Mecko Enterprises [2019] KEHC 7050 (KLR) and placed further reliance on the holding of the Court in Samuel Kahiu v Jacinta Akinyi Assistant County Commissioner [2018] eKLR.
16. Counsel submitted that the Respondents have filed two suits, one appeal, four review applications and one miscellaneous cause against the same parties and on the same issue, which issue has been determined time and again and is hence res judicata. Specifically, the issues raised by the Respondents primarily concern his employment with the 1st Interested Party, which issue was first determined via the undated and unsigned Judgment delivered in the First Suit. As the Judgment rendered in the First Suit was overturned by the Court of Appeal in the First Appeal, and the First Suit subsequently withdrawn by the Respondents, all the issues raised therein are indeed res Judicata. Further, that the issues raised in the First Suit therefore cannot be reopened for hearing and determination as that ship has sailed.
17. Counsel pointed out that this onslaught of litigation has been going on since 1999, i.e., a period of over 26 years and is still ongoing since the Respondents’ Fourth Review Application is pending hearing and determination before the Court of Appeal. That the reason for the dismissal of all proceedings after the First Suit is the doctrine of res judicata, meaning that the Courts have conclusively determined the issue of the Respondents’ employment and are thus functus officio. As such, all proceedings that came thereafter were haplessly devoid of merit as is shown in their dismissal. Further, that the Respondents have burdened and oppressed the Interested parties’ time and again through instituting multiple actions against the Interested Parties herein forcing them to file responses, make Submissions and appear in Court to defend the same issues which have already been determined by both the High Court and the Court of Appeal.
18. Counsel urged the court to declare the Respondents vexatious litigants to prevent the Interested Parties from having to incur unnecessary legal costs but also anxiety, and inconvenience. Further, that in addition to making claims are res judicata, the Respondents have also taken to making baseless and unproven allegations against various Judges serving in the highest courts in the country today, which have the effect of embarrassing the Courts, bringing the entire Judiciary into disrepute and maligning the names and reputations of various Judges. Citing the holding of the Court in Satya Bhama Ghandi v Director of Public Prosecutions & 3 others (2018) eKLR, counsel urged the court to allow the application as prayed with costs to the Respondents.
Analysis & Determination
19. The following issues arise for determination;
1) Whether the Respondents are vexatious litigants and the Court should declare them as such
2) Whether the court should bar the Respondent from instituting proceedings against the interested parties
20. Section 2(1) of the Vexatious Proceedings Act provides as follows:
If, on an application made by the Attorney General under this section, the High Court is satisfied that any person has habitually and persistently and without any reasonable ground instituted vexatious proceedings, whether civil or criminal, and whether in the High Court or in any subordinate court, and whether against the same person or against different persons, the court may, after hearing that person or giving him an opportunity of being heard, make an order declaring such person to be a vexatious litigant.
21. In the case of Samuel Kahiu vs Jacinta Akinyi Assistant County Commissioner Iloodokilani Ward/Division & another [2018] eKLR, the Court expressed itself on what amounts to a vexatious litigation as follows;
'It is a legal action, which is brought regardless of its merits, solely to harass or subdue an adversary. It may take the form of primary frivolous lawsuit or may be repetitive, burdensome and unwarranted filing of meritless motions in a matter which is otherwise a meritorious cause of action.'
22. In the case of Attorney General v Meshack Ochieng T/a Mecko Enterprises [2019] eKLR, the court quoted a decision in the case of Camerado Insurance Agency v Superior Court of Sacramento County CV 52538 (STOLZ) [1993] in which it was stated that a vexatious litigant is a person who does any of the following:
a) In the immediately preceding seven-year period has commenced, prosecuted or maintained in propria persona at least five litigations other than in a small claims court that have been;
Finally determined adversely to the person or Unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing
b) After a litigation has been finally determined against the person, he/she repeatedly re-litigates or attempts to re-litigate in propria persona either:
i) The validity of the determination against the same defendant as to whom the litigation was finally determined or
ii) The cause of caution, claim or controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant
c) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery or engages in other tactics that are frivolous'.
23. Article 24 of the Constitution provides as follows:
'Limitation of rights and fundamental freedoms
(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including,
(a) The nature of the right or fundamental freedom;
(b) The importance of the purpose of the limitation;
(c) The nature and extent of the limitation;
(d) The need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
(e) The relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
(2) Despite clause (1), a provision in legislation limiting a right or fundamental freedom—
(a) In the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;
(b) Shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and
(c) Shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.
(3) The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied.
(4) The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhi’s’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance.
(5) Despite clause (1) and (2), a provision in legislation may limit the application of the rights or fundamental freedoms in the following provisions to persons serving in the Kenya Defence Forces or the National Police Service—
(a) Article 31 — Privacy;
(b) Article 36 — Freedom of association;
(c) Article 37 — Assembly, demonstration, picketing and petition;
(d) Article 41 — Labour relations;
(e) Article 43 — Economic and social rights; and
(f) Article 49 — Rights of arrested persons.
23. Under Article 25 of the Constitution, the following rights and fundamental freedoms shall not be limited:
(a) Freedom from torture and cruel, inhuman or degrading treatment or punishment;
(b) Freedom from slavery or servitude;
(c) The right to a fair trial; and
(d) The right to an order of habeas corpus.
24. Faced with a similar scenario in the case of Attorney General v Owako; Otieno, Yogo, Ojuro & Co Advocates & 6 others (Interested Parties) (Miscellaneous Civil Suit E163 of 2021) [2023] KEHC 19858 (KLR) (24 May 2023) (Judgment), Justice R.E Aburili expressed herself as follows;
Although the Respondent is entitled, like every person to all rights to access justice and the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body, and whereas by declaring him a vexatious litigant will limit his right to enjoy these rights under the Constitution, in my most considered view, the limitation of these rights which are not absolute, is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors. These rights in my view are not absolute as they do not fall under the rights made absolute by Article 25 of the Constitution and are therefore justifiable limited in the case of a vexatious litigant, by the Vexatious Proceedings Act, as contemplated under Article 24 of the Constitution
25. Having carefully applied my mind to the issues herein raised, the Constitution al and Statutory Law herein cited as well as the relevant case law, and in considering that even in this application the Respondents instead of confining themselves to the matters relevant and germane to the Application went ahead in their response and submissions to freshly litigate the cases that the Applicant is seeking that the court relies on in finding that they are a vexatious litigant.
26. In this regard therefore, based on the listed cases wherein it is averred that the Respondents have consistently and persistently litigated against the same parties over the same subject matter notwithstanding the repeated findings of res judicata as against the Respondents by the various courts that handled these cases, and based on submissions made by both the Applicant and the interested Party and indeed the conduct of the Respondent himself as I have already herein observed, I am satisfied that the Application seeking that the Respondents be declared vexatious litigant given the circumstances as herein highlighted has merit. Accordingly, I allow the same as follows;
a) This Honourable Court now hereby makes a declaration that the Respondents are vexatious litigants;
b) The Respondents are now hereby barred from instituting proceedings against any person, and particularly the Central Bank of Kenya and the National Bank of Kenya, without leave of the High Court;
c) The Respondents are to bear the costs of the Application.
Read Dated and Signed at ELDORET on 5th June 2025
a) This Honourable Court be pleased to make a declaration that the Respondents are vexatious litigants;
b) This Honourable Court be pleased to bar the Respondents from instituting proceedings against any person, particularly the Central Bank of Kenya and the National Bank of Kenya, without leave of the High Court; and
c) The costs of this Application be provided for.
2. The application is expressed to be brought under section 2(1) of the Vexatious Proceedings Act and Order 51, Rule 1 of the Civil Procedure Rules. 2010. Further, it is premised on the grounds on the face of it and the contents of the supporting affidavit sworn by State Counsel Christine Birundu.
3. In her affidavit, she stated that the Respondents initially filed two proceedings in the High Court, and thereafter proceeded on Appeal to the Court of Appeal (a record four times on the same issues against the same parties), in summary;
a) Eldoret High Court Civil Suit No. 115 of 1999 - Thomas Owen Ondieki v National Bank of Kenya (disposed in the 1st Respondent’s favour vide an undated and unsigned Judgment, which decision was later overturned on an appeal proffered by the 1st Interested Party).
b) Eldoret High Court Civil Suit No. 175 of 1999 - Thomas Owen Ondieki and Eddah Amakobe Ingutia v National Bank of Kenya Limited and Central Bank of Kenya (dismissed vide Judgment delivered on 2nd June 2011 for being res judicata).
c) Court of Appeal - Civil Appeal No. 182 of 2011 - Thomas Owen Ondieki and Eddah Amakobe Ingutia v National Bank of Kenya Limited and Central Bank of Kenya (dismissed vide Judgment delivered on 29th October 2015 for being res judicata).
d) Court of Appeal - Civil Application No. 23 of 2016 - Thomas Owen Ondieki and Eddah Amakobe Ingutia v National Bank of Kenya Limited and Central Bank of Kenya (the 1st Review Application dismissed vide Ruling delivered on 5th October 2017 for being res judicata).
e) Court of Appeal - Civil Application No. 4 of 2018 - Thomas Owen Ondieki and Eddah Amakobe Ingutia v National Bank of Kenya Limited and Central Bank of Kenya (the 2nd Review Application dismissed vide Ruling delivered on 19th March 2021 for being res judicata).
f) Court of Appeal - Civil Application No. 23 of 2021 - Thomas Owen Ondieki and Eddah Amakobe Ingutia v National Bank of Kenya Limited and Central Bank of Kenya (dismissed vide Ruling delivered on 16th December 2022 for being res judicata)
g) Eldoret High Court Miscellaneous Civil Application No. El 13 of 2023 - Thomas Owen Ondieki v Deputy Registrar High Court of Kenya at Eldoret and National Bank of Kenya Limited (dismissed vide Ruling delivered on 15th May 2024).
4. She pointed out that the Respondents have recently filed Eldoret Court of Appeal - Civil Application E036 of2024 - Thomas Owen Ondiek and Eddah Amakobe Ingutia v. National Bank of Kenya Limited and Central Bank of Kenya on the same matter against the same parties and on the same issues, which application is pending before the Court of Appeal at Eldoret.
5. She urged that it is clear that the Respondents have abused the court process by instituting multiple court proceedings on the same issues in several different courts involving the same parties, notwithstanding that the issues have been heard and determined and are therefore res judicata. Further, that in every instance, the Interested Parties were forced, and continue to be forced to file responses, make submissions and appear in Court to defend the same issues, which have already been determined several times both by the High Court and the Court of Appeal. She stated that these proceedings amount to an abuse of the Court process as the Respondents sought a different decision on the same matter as against the same parties and in the same courts i.e. the High Court and the Court of Appeal.
6. The deponent averred that it is only fair, just and in the interest of substantive justice that the application be allowed as the Applicant and Interested Parties are justifiably wary that the Respondents will file other baseless applications or suits on the same subject matter as against the same parties which the courts will have to hear and the Interested Parties will have no choice but to defend making it a waste of judicial time and other resources.
Replying Affidavit
7. In opposition to the application, the Respondents filed a Replying Affidavit dated 28/10/2024. The Replying Affidavit is quite lengthy and verbose and seeks to rely on the Record of Appeal in Case No. 116 of 2012. The Deponent laid out the history of the various matters filed in the various courts and urged the court to dismiss the application.
Hearing of the Application
8. The parties filed submissions on the application.
Applicants Submissions
9. Learned Counsel for the Applicant reproduced the definition of a Vexatious Litigant from The Blacks’ Law Dictionary, Tenth Edition at page 1075 where it defines a Vexatious Litigant as follows;
“A litigant who repeatedly files frivolously suits”
10. She additionally cited the case of Samuel Kahiu v Jacinta Akinyi Soso Assistant County Commissioner Iloodokilani Ward/Division & another [2018] KEHC 2654 (KLR) and the case of Attorney General v Meshack Ochieng t/a Mecko Enterprises [2019] KEHC 7050 (KLR). Counsel submitted that the law that governs vexatious proceedings in Kenya is the Vexatious Proceedings Act which was enacted to prevent abuse of the process of the High Court and other courts by the institution of vexatious legal proceedings. She reproduced the provisions of Section 2(1) of the Act and submitted that the Respondents begun their litigation in 1999 and over the course of 25 years they have persistently continued to institute different frivolous proceedings over the same matter and against the same parties. All the said proceedings have been found unmeritorious and consequently dismissed. She reiterated that the Respondents are vexatious litigants and should be declared as such by this Court.
11. On the right of access to justice, counsel cited Articles 48 and 50 of the Constitution of Kenya and further, submitted that Article 159 of the Constitution. Further, he posited that although the right to access of justice is guaranteed in the Constitution, it is not an absolute right and does not fall under the rights made absolute by Article 25 of the Constitution. That it can be reasonably limited in the case of a vexatious litigant, by the Vexatious Proceedings Act. as contemplated under Article 24 of the Constitution. She placed reliance on the decision in the case of Attorney General v Owako; Otieno, Yogo, Qjuro & Co Advocates & 6 others (Interested Parties) (Miscellaneous Civil Suit El63 of 2021 120231 KEHC 19858 (KLR) and the case of The High Court of South Africa, Mpumalanga Division (Middleburg Local Seat) Case Number 3542/2020 between Zenani France Sibanvoni v Executive Mayor of Nkanzala. District Municipality. Municipal Manager Nkangala, District Municipality, Stanford Mofore NO, Eskom Kusile Power Station and Engen Oil in support of this submission.
12. Counsel urged that although the right to access of justice by the Respondents will be limited, this limitation can be evaded by persuading a court or judge that the proceedings instituted or to be instituted will not constitute an abuse of the process of the court. In addition, the person can still appeal if not satisfied with the decision of the court or judge refusing him permission to institute legal proceedings. Additionally, that this limitation is reasonable and justifiable and in an open and democratic society as intended by the Constitution. Counsel urged that the Application is merited and should be allowed with costs.
Respondents’ Submissions
13. The Respondents filed submissions dated 12/03/2025 which was a reproduction of the contents of the affidavit. They questioned the judgements in Court File No. 115 of 1999 by Justice Nambuye and laid out the chronology of events surrounding said Judgement. That the said judgement was declared null and void by the Court of Appeal in Appeal No. 116 od 2012 and as such should not be considered a court record. They further stated that the decision in HCC No. 175 of 1999 was based on a Judgement that did not exist being HCCC No. 115 of 1999. They additionally disputed the authenticity if a Gazette Notice 8829 of 11/12/2003.
14. The Respondents stated that the law on vexatious orders are that a threshold of a minimum of 6 claims that were totally without merit must have been used to move a court of law. Further, that they only moved the court of appeal 5 times and the last time they appeared at the High Court, the same was on good grounds. They reiterated that the Justice Nambuye carried out judicial duties while actively appearing before the tribunal and therefore, the drafting of the Judgement in HCCC 115/99 between 23/03/2004 and the ruling she made one year after her suspension which decision they faulted, as according to them her pending decisions were to be held in abeyance or handed over to another Judicial Officer. They urged the court to dismiss the application with costs.
Interested Party’s Submissions
15. The interested party filed submissions dated 20/11/2025. They laid down the sequence of events with regards to the various matters filed by the Respondents and proceeded to submit on the issues for determination. As to whether the Respondents should be declared vexatious litigants, they submitted that while the law on vexatious proceedings is definitively set out in the Vexatious Proceedings Act, the said legislation does not offer a definition for the term “vexatious litigant”. They placed reliance on the holding of Muigai, J in Attorney General v Meshack Ochieng t/a Mecko Enterprises [2019] KEHC 7050 (KLR) and placed further reliance on the holding of the Court in Samuel Kahiu v Jacinta Akinyi Assistant County Commissioner [2018] eKLR.
16. Counsel submitted that the Respondents have filed two suits, one appeal, four review applications and one miscellaneous cause against the same parties and on the same issue, which issue has been determined time and again and is hence res judicata. Specifically, the issues raised by the Respondents primarily concern his employment with the 1st Interested Party, which issue was first determined via the undated and unsigned Judgment delivered in the First Suit. As the Judgment rendered in the First Suit was overturned by the Court of Appeal in the First Appeal, and the First Suit subsequently withdrawn by the Respondents, all the issues raised therein are indeed res Judicata. Further, that the issues raised in the First Suit therefore cannot be reopened for hearing and determination as that ship has sailed.
17. Counsel pointed out that this onslaught of litigation has been going on since 1999, i.e., a period of over 26 years and is still ongoing since the Respondents’ Fourth Review Application is pending hearing and determination before the Court of Appeal. That the reason for the dismissal of all proceedings after the First Suit is the doctrine of res judicata, meaning that the Courts have conclusively determined the issue of the Respondents’ employment and are thus functus officio. As such, all proceedings that came thereafter were haplessly devoid of merit as is shown in their dismissal. Further, that the Respondents have burdened and oppressed the Interested parties’ time and again through instituting multiple actions against the Interested Parties herein forcing them to file responses, make Submissions and appear in Court to defend the same issues which have already been determined by both the High Court and the Court of Appeal.
18. Counsel urged the court to declare the Respondents vexatious litigants to prevent the Interested Parties from having to incur unnecessary legal costs but also anxiety, and inconvenience. Further, that in addition to making claims are res judicata, the Respondents have also taken to making baseless and unproven allegations against various Judges serving in the highest courts in the country today, which have the effect of embarrassing the Courts, bringing the entire Judiciary into disrepute and maligning the names and reputations of various Judges. Citing the holding of the Court in Satya Bhama Ghandi v Director of Public Prosecutions & 3 others (2018) eKLR, counsel urged the court to allow the application as prayed with costs to the Respondents.
Analysis & Determination
19. The following issues arise for determination;
1) Whether the Respondents are vexatious litigants and the Court should declare them as such
2) Whether the court should bar the Respondent from instituting proceedings against the interested parties
20. Section 2(1) of the Vexatious Proceedings Act provides as follows:
If, on an application made by the Attorney General under this section, the High Court is satisfied that any person has habitually and persistently and without any reasonable ground instituted vexatious proceedings, whether civil or criminal, and whether in the High Court or in any subordinate court, and whether against the same person or against different persons, the court may, after hearing that person or giving him an opportunity of being heard, make an order declaring such person to be a vexatious litigant.
21. In the case of Samuel Kahiu vs Jacinta Akinyi Assistant County Commissioner Iloodokilani Ward/Division & another [2018] eKLR, the Court expressed itself on what amounts to a vexatious litigation as follows;
'It is a legal action, which is brought regardless of its merits, solely to harass or subdue an adversary. It may take the form of primary frivolous lawsuit or may be repetitive, burdensome and unwarranted filing of meritless motions in a matter which is otherwise a meritorious cause of action.'
22. In the case of Attorney General v Meshack Ochieng T/a Mecko Enterprises [2019] eKLR, the court quoted a decision in the case of Camerado Insurance Agency v Superior Court of Sacramento County CV 52538 (STOLZ) [1993] in which it was stated that a vexatious litigant is a person who does any of the following:
a) In the immediately preceding seven-year period has commenced, prosecuted or maintained in propria persona at least five litigations other than in a small claims court that have been;
Finally determined adversely to the person or Unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing
b) After a litigation has been finally determined against the person, he/she repeatedly re-litigates or attempts to re-litigate in propria persona either:
i) The validity of the determination against the same defendant as to whom the litigation was finally determined or
ii) The cause of caution, claim or controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant
c) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery or engages in other tactics that are frivolous'.
23. Article 24 of the Constitution provides as follows:
'Limitation of rights and fundamental freedoms
(1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including,
(a) The nature of the right or fundamental freedom;
(b) The importance of the purpose of the limitation;
(c) The nature and extent of the limitation;
(d) The need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; and
(e) The relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.
(2) Despite clause (1), a provision in legislation limiting a right or fundamental freedom—
(a) In the case of a provision enacted or amended on or after the effective date, is not valid unless the legislation specifically expresses the intention to limit that right or fundamental freedom, and the nature and extent of the limitation;
(b) Shall not be construed as limiting the right or fundamental freedom unless the provision is clear and specific about the right or freedom to be limited and the nature and extent of the limitation; and
(c) Shall not limit the right or fundamental freedom so far as to derogate from its core or essential content.
(3) The State or a person seeking to justify a particular limitation shall demonstrate to the court, tribunal or other authority that the requirements of this Article have been satisfied.
(4) The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhi’s’ courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance.
(5) Despite clause (1) and (2), a provision in legislation may limit the application of the rights or fundamental freedoms in the following provisions to persons serving in the Kenya Defence Forces or the National Police Service—
(a) Article 31 — Privacy;
(b) Article 36 — Freedom of association;
(c) Article 37 — Assembly, demonstration, picketing and petition;
(d) Article 41 — Labour relations;
(e) Article 43 — Economic and social rights; and
(f) Article 49 — Rights of arrested persons.
23. Under Article 25 of the Constitution, the following rights and fundamental freedoms shall not be limited:
(a) Freedom from torture and cruel, inhuman or degrading treatment or punishment;
(b) Freedom from slavery or servitude;
(c) The right to a fair trial; and
(d) The right to an order of habeas corpus.
24. Faced with a similar scenario in the case of Attorney General v Owako; Otieno, Yogo, Ojuro & Co Advocates & 6 others (Interested Parties) (Miscellaneous Civil Suit E163 of 2021) [2023] KEHC 19858 (KLR) (24 May 2023) (Judgment), Justice R.E Aburili expressed herself as follows;
Although the Respondent is entitled, like every person to all rights to access justice and the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body, and whereas by declaring him a vexatious litigant will limit his right to enjoy these rights under the Constitution, in my most considered view, the limitation of these rights which are not absolute, is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors. These rights in my view are not absolute as they do not fall under the rights made absolute by Article 25 of the Constitution and are therefore justifiable limited in the case of a vexatious litigant, by the Vexatious Proceedings Act, as contemplated under Article 24 of the Constitution
25. Having carefully applied my mind to the issues herein raised, the Constitution al and Statutory Law herein cited as well as the relevant case law, and in considering that even in this application the Respondents instead of confining themselves to the matters relevant and germane to the Application went ahead in their response and submissions to freshly litigate the cases that the Applicant is seeking that the court relies on in finding that they are a vexatious litigant.
26. In this regard therefore, based on the listed cases wherein it is averred that the Respondents have consistently and persistently litigated against the same parties over the same subject matter notwithstanding the repeated findings of res judicata as against the Respondents by the various courts that handled these cases, and based on submissions made by both the Applicant and the interested Party and indeed the conduct of the Respondent himself as I have already herein observed, I am satisfied that the Application seeking that the Respondents be declared vexatious litigant given the circumstances as herein highlighted has merit. Accordingly, I allow the same as follows;
a) This Honourable Court now hereby makes a declaration that the Respondents are vexatious litigants;
b) The Respondents are now hereby barred from instituting proceedings against any person, and particularly the Central Bank of Kenya and the National Bank of Kenya, without leave of the High Court;
c) The Respondents are to bear the costs of the Application.
Read Dated and Signed at ELDORET on 5th June 2025