https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/819

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATE COURT CIVIL** **MCCC NO. E091 OF 2025** **ABDALLA JUMAA NGOZI...........................................................................PLAINTIFF** **VERSUS** **KHALIFA HEMED AHMED AL-GHAARIFY** **(formerly known as Khamis Khalef Ahmed)..........................................1ST DEFENDANT** **KENYA COMMERCIAL BANK PLC.....................................................2ND DEFENDANT** **RULING** **Introduction** 1. Before me for determination is the 1st Defendant’s Notice of Preliminary Objection dated 30th June 2026. The 1st Defendant seeks, in substance, to have the Plaintiff’s suit struck out on the grounds that this Court lacks jurisdiction to entertain it; that the suit is barred by the doctrine of res judicata; that the parties’ rights under the Agreement for Sale dated 13th December 2023 were conclusively determined by a Consent Arbitral Award dated 19th November 2024 and subsequent proceedings before the Environment and Land Court; and that continuation of the present suit amounts to an abuse of the process of the Court. 2. The Preliminary Objection is supported by written submissions filed by the 1st Defendant and a Notice to Court through which the 1st Defendant placed before this Court the Consent Arbitral Award, the rulings of the Environment and Land Court, the subsequent Court of Appeal order and the court receipt evidencing a deposit of KShs. 10,229,698. 3. The Plaintiff opposes the Preliminary Objection through a Replying Affidavit and written submissions. His principal contention is that the Preliminary Objection is founded on disputed facts and therefore does not meet the threshold of a pure point of law as contemplated in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. He further contends that the present suit concerns questions relating to the motor vehicle which were not conclusively determined by the Environment and Land Court and that, in any event, the decision of the Environment and Land Court is the subject of appellate proceedings. **Background** 1. The dispute between the Plaintiff and the 1st Defendant has a considerable procedural history. From the material placed before this Court, the parties entered into an Agreement for Sale dated 13th December 2023 involving, inter alia, Plot No. 7871/I/MN, Shanzu, Mombasa and Motor Vehicle Registration No. KDL 517T, Volkswagen. 2. A dispute arising from that transaction was referred to arbitration and culminated in a Consent Arbitral Award dated 19th November 2024. The Award recorded, among other matters, an outstanding balance of KShs. 12,729,698. It required the Respondent therein to pay KShs. 2,000,000 through the named advocates after the outstanding motor vehicle loan arrears had been paid and the original logbook supplied, a further KShs. 500,000 on or before 30th November 2024, and thereafter deposit the balance of KShs. 10,229,698 within the stipulated period. The Award also contained provisions dealing with completion documents and transfer of both the property and the motor vehicle. 3. Clause 7 of the Consent Award further provided that failure to comply with the stipulated payment obligations would result in the Agreement for Sale dated 13th December 2023 being treated as rescinded and the Respondent being required to vacate the premises within the prescribed period. 4. The 1st Defendant thereafter approached the Environment and Land Court at Mombasa in ELC Miscellaneous Application No. E013 of 2025, Khalef Hamed Al-Ghaarify v Abdallah Jumaa Ngozi, seeking recognition and enforcement of the Award. 5. In a ruling delivered on 4th July 2025, Hon. Justice J.O. Olola allowed the application and recognized and enforced the Consent Arbitral Award. The Court noted that the validity of the Award itself had not been disputed and found no basis under the Arbitration Act for declining recognition and enforcement. 6. Sections 36 and 37 of the Arbitration Act govern recognition and enforcement of arbitral awards. Section 36 provides, in material part, that a domestic arbitral award is to be recognized as binding and enforced upon application, subject to the statutory requirements and the grounds for refusal set out in section 37. 7. Following adoption of the Award, the 1st Defendant filed a further application dated 10th July 2025, seeking enforcement of the consequences flowing from the Award, including eviction of the Plaintiff from Plot No. 7871/I/MN and a declaration concerning rescission of the Agreement for Sale. 8. That application was opposed by the Plaintiff and by Randolph M. Tindika as an Interested Party. Among other things, the Plaintiff referred to the motor vehicle loan relating to Motor Vehicle Registration No. KDL 517T and to other proceedings which he said affected completion of the transaction. 9. In its ruling delivered on 23rd April 2026, the Environment and Land Court found that its ruling of 4th July 2025 had already conclusively dealt with recognition and enforcement of the Consent Arbitral Award. The Court further found that Randolph M. Tindika was not a party to the Agreement for Sale, the Consent Arbitral Award or the decree arising therefrom, and therefore had no contractual or legally cognizable right to interfere with enforcement of the arrangement between the principal parties. 10. The Environment and Land Court ultimately allowed the application and ordered the Plaintiff to vacate the suit premises within thirty days, failing which the 1st Defendant would be at liberty to evict him at his cost. Costs were awarded to the 1st Defendant. 11. The Plaintiff subsequently moved to the Court of Appeal in Civil Application No. E044 of 2026. On 13th May 2026, the parties recorded a consent before F. Tuiyott, G.W. Ngenye-Macharia and S.O. Okong’o, JJ.A. The Court of Appeal stayed the ruling and orders of the Environment and Land Court dated 23rd April 2026 pending the intended appeal on condition that the Applicant deposit KShs. 10,229,698 within twenty-one days. The order expressly provided that in default of compliance, the stay would automatically lapse. The record before this Court contains a Judiciary receipt showing that the sum of KShs. 10,229,698 was deposited on 10th June 2026. The 1st Defendant’s Case 1. The 1st Defendant contends that the present suit cannot survive the foregoing proceedings. His argument is that the contractual rights of the Plaintiff and the 1st Defendant were determined by the Consent Arbitral Award; that the Award became binding and enforceable following its adoption by the Environment and Land Court; that the subsequent ruling of 23rd April 2026 enforced those rights; and that this Court cannot reopen, vary, contradict or sit on appeal over the judgment and orders of a superior court. 2. He further contends that the requirements of section 7 of the Civil Procedure Act have been satisfied and that the present suit is res judicata. He relies, among other authorities, on Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others, John Florence Maritime Services Ltd & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others, Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd and Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 Others. 3. The 1st Defendant consequently asks the Court to uphold the Preliminary Objection, find that this Court lacks jurisdiction, declare the suit barred by res judicata, strike it out with costs and discharge any orders inconsistent with the judgments and orders of the Environment and Land Court. The Plaintiff’s Case 1. The Plaintiff, on the other hand, submits that the 1st Defendant’s objection does not meet the threshold in Mukisa Biscuit because determination of res judicata requires the Court to interrogate the previous pleadings, proceedings and decisions and compare them with the present suit. 2. He relies on George Kamau Kimanu & 4 Others v County Government of Trans Nzoia & Another [2014] eKLR and Bao Investments & Office Management Service Ltd v Housing Finance of Kenya [2005] eKLR for the proposition that where determination of res judicata requires ascertainment of facts from previous proceedings, the matter ought not to be determined through a Preliminary Objection. 3. On the merits, the Plaintiff relies upon section 7 of the Civil Procedure Act and Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others, arguing that the 1st Defendant has failed to establish all the constituent elements of res judicata. 4. In his Replying Affidavit, the Plaintiff further states that he instituted the present proceedings because, in his view, the Environment and Land Court lacks jurisdiction to determine issues relating to ownership of motor vehicles. He therefore disputes the assertion that the ELC conclusively determined the controversy now before this Court. 5. He additionally relies on the Court of Appeal proceedings and the stay of execution granted therein and contends that until the appeal is determined, the decision of the Environment and Land Court cannot be regarded as conclusive. Issues for Determination 1. Having considered the Preliminary Objection, the Replying Affidavit, the parties’ respective submissions and the court decisions and documents placed before me, I consider the following issues to arise for determination: 2. Whether the Preliminary Objection meets the legal threshold of a preliminary objection; 3. Whether the present suit or the issues arising therein are barred by res judicata; 4. What is the effect of the Environment and Land Court and Court of Appeal proceedings upon the present suit; and 5. What orders ought to issue. Whether the Preliminary Objection meets the required threshold 1. The law concerning preliminary objections is settled. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, a preliminary objection was described as a pure point of law which arises from the pleadings and which, if successfully argued, may dispose of the suit. The objection proceeds on the assumption that the pleaded facts of the opposing party are correct and is not appropriate where contested facts have to be ascertained. 2. That principle does not, however, mean that a plea of res judicata is, in all circumstances, incapable of being raised preliminarily. Kenyan courts have recognized that res judicata has jurisdictional consequences and may properly be raised in limine where the necessary facts are uncontested and can be ascertained from the pleadings and the court record. In Omondi v National Bank of Kenya Ltd & Others, as subsequently cited in Kenyan jurisprudence, the Court recognized res judicata as a point of law capable of being taken preliminarily where the Court can look at its pleadings and relevant records without determining disputed affidavit evidence. 3. The Plaintiff’s argument that res judicata can never properly be raised by way of a Preliminary Objection is therefore too broad. The proper inquiry is whether, in this particular matter, the Court can conclusively determine all the constituent elements of res judicata without resolving disputed factual matters. 4. In John Florence Maritime Services Ltd & Another v Cabinet Secretary Transport & Infrastructure & 3 Others [2021] KESC 39 (KLR), the Supreme Court reaffirmed both the importance of finality and the constituent requirements of res judicata. The Court emphasized that there must be a former final judgment or order on the merits, rendered by a court with jurisdiction, and identity between the actions in terms of parties, subject matter and cause of action. 5. I therefore reject the Plaintiff’s submission only to the extent that it suggests that the doctrine itself is incapable of preliminary determination. Whether the present objection ultimately succeeds is a different question. Whether the suit is res judicata 1. Section 7 of the Civil Procedure Act bars a court from trying any suit or issue in which the matter directly and substantially in issue has already been directly and substantially in issue in a former suit between the same parties, or those through whom they claim, litigating under the same title, before a competent court, and has been heard and finally decided. 2. The requirements are conjunctive. The party invoking the doctrine must establish all of them. The Supreme Court in John Florence Maritime Services reaffirmed that there must be a former final decision on the merits by a competent tribunal together with the requisite identity of parties, subject matter and cause of action. 3. I first address the fact that the present suit appears to have existed before some of the decisions now relied upon by the 1st Defendant. That fact does not, by itself, defeat res judicata. Explanation (1) to section 7 defines a “former suit” as a suit which has been decided before the suit in question, whether or not it was instituted before it. The decisive consideration is therefore priority of determination rather than priority of institution. 4. There can equally be no serious dispute that the Consent Arbitral Award was subsequently recognized and enforced by the Environment and Land Court and that the Court thereafter issued enforcement orders on 23rd April 2026. Those orders remain orders of a superior court unless and until varied or set aside by a competent appellate court. This Court has no jurisdiction to purport to review, overturn or declare them erroneous. 5. The Plaintiff’s argument that the Environment and Land Court lacked jurisdiction to deal with the motor vehicle cannot therefore be used in these proceedings as a collateral attack on that Court’s decisions. Whether the Environment and Land Court was correct in the scope of its determination is a matter for the appellate court and not for this Court. 6. There is, however, a distinction between recognizing the binding effect of the ELC decisions and finding that the whole of the present suit is res judicata. 7. From the record placed before me, the present suit includes Kenya Commercial Bank PLC as the 2nd Defendant. KCB was not a party to the arbitration proceedings between the Plaintiff and the 1st Defendant and was not a principal party in the Environment and Land Court proceedings through which the Consent Award was recognized and enforced. 8. The earlier ELC ruling itself records that the present proceedings included relief touching directly upon Motor Vehicle Registration No. KDL 517T, including the amount outstanding on the loan secured against the motor vehicle, release or transfer of the motor vehicle and issuance of its original logbook. 9. It is true that the Consent Arbitral Award itself dealt with the vehicle. It expressly contemplated payment of the motor vehicle loan arrears, production of the original logbook and transfer of the motor vehicle as part of completion of the transaction. 10. Consequently, insofar as the Plaintiff may seek in this suit to relitigate, as against the 1st Defendant, whether the Consent Arbitral Award bound him, whether the Agreement for Sale was capable of being enforced contrary to the Award, whether the consequences of default under the Award arose, or matters expressly determined by the Environment and Land Court on 4th July 2025 and 23rd April 2026, he cannot be permitted to do so. 11. Those questions have already been adjudicated and cannot be reopened before a subordinate court. 12. That finding, however, does not automatically answer the distinct question whether all issues and reliefs pleaded against Kenya Commercial Bank PLC, including the bank’s independent obligations in relation to its security interest, the outstanding motor vehicle loan and the release of the logbook, were themselves heard and finally determined in proceedings in which KCB was a party or privy. 13. The Court of Appeal has recently reiterated that a litigant cannot escape res judicata merely by introducing additional parties or a different formulation of a cause of action where the substance of the dispute has already been determined. That principle is important, but it does not dispense with the Court’s obligation to establish the necessary juridical relationship between the additional party and the former parties, and to identify the precise issue said to have been finally determined. 14. On the material before me, I am unable to find that KCB’s independent rights and obligations were adjudicated on their merits in the arbitral proceedings or in the subsequent ELC proceedings. There is equally no material demonstrating that KCB was litigating under the same title as either the Plaintiff or the 1st Defendant in those proceedings. 15. It follows that although substantial questions between the Plaintiff and the 1st Defendant have undoubtedly been conclusively determined, the 1st Defendant has not demonstrated that every issue in the entire suit, including the distinct claims involving the 2nd Defendant, satisfies all the conjunctive requirements of section 7. 16. Res judicata applies not only to an entire suit but also to an issue. The proper approach in the circumstances is therefore not to strike out the entire suit indiscriminately but to hold the parties bound by those questions which have already been conclusively determined while preserving for determination only such distinct issues, if any, as were not adjudicated in the former proceedings. Effect of the Pending Appeal and Stay 1. I now turn to the Plaintiff’s contention that the Environment and Land Court decision cannot be regarded as final because an appeal is pending and a stay of execution was granted. 2. That submission conflates the validity of a judgment with its executability pending appeal. The institution of an appeal does not, by itself, annul the judgment appealed against. Order 42 Rule 6 of the Civil Procedure Rules expressly proceeds on the basis that an appeal does not automatically operate as a stay. A stay suspends execution in accordance with its terms; it does not set aside or erase the judgment. 3. In the present matter, the Court of Appeal did not set aside the Environment and Land Court orders. It granted a conditional stay on 13th May 2026, expressly requiring the deposit of KShs. 10,229,698 within twenty-one days, with automatic lapse in default. 4. The only receipt placed before this Court is dated 10th June 2026. On the face of the record, that payment was made after expiry of the twenty-one-day period prescribed in the order of 13th May 2026. 5. No further Court of Appeal order enlarging time, reinstating the stay or otherwise varying the terms of the order of 13th May 2026 has been placed before this Court. 6. I consequently cannot accept the Plaintiff’s bare proposition that the existence of the appeal renders the ELC determination non-conclusive. Equally, this Court need not pronounce itself definitively upon the subsistence or otherwise of the Court of Appeal stay beyond what is apparent on the order itself, since enforcement of that appellate order is a matter properly falling within the jurisdiction of the Court of Appeal. 7. For present purposes, the material point is that the Environment and Land Court decisions have not been set aside and remain binding upon the Plaintiff and 1st Defendant. Jurisdiction of this Court 1. The 1st Defendant has further invited this Court to find that it lacks jurisdiction altogether. I agree that this Court has no jurisdiction to reopen, vary, impeach or contradict a judgment or order of the Environment and Land Court. The principle in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd remains that jurisdiction is foundational and a court without jurisdiction must down its tools. 2. But it does not follow that because a superior court has determined some of the issues arising from a broader commercial transaction, this Court loses jurisdiction over every distinct dispute involving a party and cause of action not finally determined by that superior court. 3. The jurisdictional objection therefore succeeds only to the extent that this Court is being invited, through the present suit, to revisit matters conclusively determined by the arbitral Award as recognized and enforced by the Environment and Land Court. 4. The Court shall not entertain any prayer or issue whose effect would be: 5. To question the validity or binding nature of the Consent Arbitral Award dated 19th November 2024; 6. To contradict the ruling of the Environment and Land Court dated 4th July 2025 recognizing and enforcing that Award; 7. To reverse or undermine the findings and orders made by the Environment and Land Court on 23rd April 2026; 8. To revive contractual rights which have been conclusively dealt with in those proceedings; or 9. Otherwise, to sit on appeal over the Environment and Land Court. 10. Subject to those limitations, however, the 1st Defendant has not demonstrated that the entire suit against all parties is incompetent for want of jurisdiction. Abuse of Process 1. The Court is equally alive to the doctrine of abuse of process. The judicial system cannot permit parallel litigation to be used to obtain inconsistent determinations over a controversy already settled by a competent court. The rationale underlying res judicata is finality, conservation of judicial resources and protection of litigants from repetitive litigation. The Supreme Court affirmed those considerations in John Florence Maritime Services. 2. Accordingly, should it emerge at the hearing that any surviving prayer is merely an indirect attempt to obtain against KCB or any other person a result inconsistent with the Consent Arbitral Award and the ELC orders, the Court will be entitled to reject such a claim. 3. That determination is, however, different from striking out the entire suit at this preliminary stage when the material before the Court does not demonstrate that the independent obligations of the 2nd Defendant were themselves finally adjudicated. **Conclusion** 1. The 1st Defendant has succeeded in demonstrating that the Plaintiff and the 1st Defendant are bound by the Consent Arbitral Award dated 19th November 2024 as recognized and enforced by the Environment and Land Court and that this Court cannot reopen or contradict those determinations. 2. The Plaintiff’s contention that the mere pendency of appellate proceedings deprived the ELC decisions of their binding character is without merit. 3. I am, however, not persuaded that the 1st Defendant has established all the conjunctive elements necessary to strike out the entire suit as res judicata, particularly having regard to the presence of Kenya Commercial Bank PLC and the distinct questions appearing from the record concerning the motor vehicle loan, the bank’s security and release of the original logbook. 4. The correct course is therefore to preserve the finality of those issues already determined while allowing only genuinely distinct and unresolved issues to proceed. **Orders** 1. In the result, I make the following orders: 2. The 1st Defendant’s Preliminary Objection dated 30th June 2026 is partially upheld. 3. The Plaintiff is barred by res judicata and the principle of finality from reopening, relitigating or seeking orders inconsistent with: 4. The Consent Arbitral Award dated 19th November 2024; 5. The ruling and orders of the Environment and Land Court delivered on 4th July 2025 in Mombasa ELC Miscellaneous Application No. E013 of 2025; and 6. The ruling and orders of the Environment and Land Court delivered on 23rd April 2026 in the said proceedings. 7. Any prayer in the Plaint whose effect is to impeach, vary, contradict or circumvent the said Award, judgments or orders shall not be available for determination by this Court. 8. The prayer seeking the striking out of the entire suit is declined. 9. The suit may proceed only in respect of such distinct issues, if any, concerning the 2nd Defendant and the motor vehicle that were not heard and finally determined in the arbitral or Environment and Land Court proceedings. 10. For avoidance of doubt, this Court shall not sit on appeal over or otherwise interfere with the decisions of the Environment and Land Court or the Court of Appeal. 11. Given that the Preliminary Objection has succeeded only in part, each party shall bear its own costs of the Preliminary Objection. Orders accordingly. **DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026.** **………………………..** **HON.E.M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**