REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
MILIMANI LAW COURTS
MISCELLANEOUS APPLICATION NO. 167 OF 2018
HON. ATTORNEY GENERAL…………………….……….… 1ST APPLICANT
THE PRINCIPAL SECRETARY,
MINISTRY OF EDUCATION ………………………..………. 2ND APPLICANT
VERSUS
MESHACK OCHIENG T/A MECKO ENTERPRISES ……..…... RESPONDENT
CONSOLIDATED WITH
MISCELLANEOUS APPLICATION NO. 445 OF 2013
CHAIRMAN BOARD OF GOVERNORS
NG’IYA GIRLS HIGH SCHOOL …………..…………….…...….. APPLICANT
AND
MESHACK OCHIENG T/A MECKO ENTERPRISES ….…...1ST RESPONDENT
THE PRINCIPAL SECRETARY, STATE DEPARTMENT
OF EDUCATION ……………….…………………..………. 2ND RESPONDENT
ATTORNEY GENERAL …………………………....…….... 3RD RESPONDENT
SECRETARY COORDINATOR ECONOMICS STIMULUS PROGRAMME
PUBLIC WORKS ………………………………………….. 4TH RESPONDENT
CABINET SECRETARY, NATIONAL TREASURY …. 5TH RESPONDENT
RULING
1. The applications dated 28.3.2024, 4.4.2024 and 13.4.2024 are hereby marked as struck out on the application of the applicant.
2. Mr. Ochieng has sought leave of the Court to file a fresh application to seek a certificate of order against the Government.
3. A similar application dated 5.6.2023 was filed, heard and determined by this Court vide its ruling dated 1.3.2024. This Court found that Judge J. Kamau decided the matter involving the same parties on the same issue that was before this Court seeking a certificate of order against the Government. This Court found the application dated 5.6.2023 to be res judicata as the applicant was litigating and re-litigating on the same issue.
4. Having found that the application seeking a certificate of order against the Government was res judicata, this Court cannot grant leave to the applicant to file a similar application as that would be an abuse of the Court Process. In the ruling of 1.3.2024, I cited the provisions of Section 7 of the Civil Procedure Act which applies on factors to be considered by a Court in determining if an application is res judicata.
5. I also relied on the case of Independent Electoral & Boundaries Commission v Maina Kiaia & 5 others [2017] eKLR, on the doctrine of res judicata.
6. I also considered that Judge J. Kamau had addressed an application wherein the she found that compound interest was not payable to the applicant herein. Judge J. Kamau in her ruling dated 26.2.2014 set aside the arbitration award on compound interest which had been awarded by the Arbitral Tribunal at the rate of 17.5% per annum.
7. In the application dated 5.6.2023 determined by this Court on 1.3.2024 the applicant herein sought a certificate of order against the Government. This Court found that application not to have merits for being res judicata.
8. I cannot sit on appeal against my own ruling as the applicant is now praying that I grant him leave to file an application similar to the one that I decided on 1.3.2024.
9. I decline to grant the applicant leave to file an application seeking a certificate of order against the Government. As stated in my ruling of 1.3.2024, Judge M. Muigai in her ruling of 20.5.2019 noted that the applicant was paid the principal sum and costs, a fact which the applicant herein admitted before the said Court. She found the issue of interest to be res judicata unless appealed against in the Court of Appeal.
10. The applicant has not shown any ruling from the Court of Appeal determining the issue of interest.
11. This Court is functus officio in regard to the issue of payment of interest to the applicant and will not entertain any other application based on the same facts seeking a certificate of order against the Government for unpaid interest.
12. I hereby direct that the consolidated files be marked as closed as there is nothing else that is outstanding for this Court’s determination.
13. The application is given 14 days right of appeal against today’s decision.
It’s hereby ordered.
DATED, SIGNED and DELIVERED at NAIROBI on this 6th day of May, 2024. Ruling delivered through Microsoft Teams Online Platform.
NJOKI MWANGI
JUDGE
In the presence of:
Mr. Meshack Ochieng acting in person – applicant
Mr. Kiarie, State Counsel for the Hon. Attorney General – Respondent
Ms B. Wokabi – Court Assistant.