Wangari v Kimuhu (Family Miscellaneous Application E013 of 2023) [2026] KEHC 10045 (KLR) (19 June 2026) (Ruling)

Wangari v Kimuhu (Family Miscellaneous Application E013 of 2023) [2026] KEHC 10045 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 10045 (KLR) Republic of Kenya In the High Court at Kiambu Family Miscellaneous Application E013 of 2023 MN Mwangi, J June 19, 2026 Between Anne Wangari Applicant and Susan Wanjiru Kimuhu Respondent Ruling 1.The applicant herein filed an application dated 6th June 2024 seeking orders for review, varying and/or setting of aside the ruling delivered on 17th May 2024. The applicant also prays for costs of the application. In opposition to the said application, the respondent filed a notice of preliminary objection dated 5th November 2024, which is the subject of this ruling. 2.The respondent urges this court to strike out the application as it offends the doctrine of res judicata, as the applicant is attempting to resuscitate the application dated 10th August 2023, through a review. The respondent contended that review of the said application will prejudice her right to be heard and her right to a fair hearing. 3.In opposition to the notice of preliminary objection, the applicant filed grounds of opposition dated 3rd March 2025. It needs to be re-stated that grounds of opposition that address factual issues are not a valid response to a notice of preliminary objection, which is required to raise pure points of law. The grounds of opposition filed by the respondent are hereby struck out. 4.This court directed that the notice of preliminary objection would be canvassed by way of written submissions. The respondent filed hers dated 3rd January 2026 through the law firm of Agoi Kilima & Co. Advocates, whereas the applicant filed submissions dated 20th May 2026 through the law firm of Chebiego & Associates Advocates. 5.Mr. Agoi, learned counsel for the respondent submitted that section 7 of the Civil Procedure Act, bars Courts from re-litigating matters that have already been determined. He stated that the application dated 10th August 2023 was already determined in the ruling of 17th May 2024 and that the current application dated 6th June 2024, is only seeking to reopen the same. 6.He argued that the threshold of res judicata has been met since the parties are the same, the subject matter is the same and the issues raised are similar. He contended that the review application is misleading as the error raised is simply disagreement with the court ruling, which is a subject of appeal, not review. 7.Mr. Agoi submitted that an order for review is governed by section 80 of the Civil Procedure Rules Act 45(1) of the Civil Procedure Rules. He stated that the applicant must establish discovery of new and important matter or evidence, mistake or error apparent on the face of the record and any other sufficient reason. He stated that the applicant relied on the ground of error apparent on the face of the record, which was discussed in the case of Nyamogo & Nyamogo v Kogo [2001] EA 170. He urged this court to dismiss the application. He asserted that a review is not an appeal. 8.Mr. Chebiego, learned counsel of the applicant, submitted that the case of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, defined what constitutes a notice of preliminary objection and that it must be raised on a pure point of law. He stated that the notice of preliminary objection herein falls outside the said parameters He referenced the case of Oraro v Mbaja [2005] eKLR. He argued that the present notice of preliminary objection was raised on contested factual matters, which require examination of evidence and interrogation of the court record. 9.Mr. Chebiego stated that the doctrine of res judicata is inapplicable to this case and relied on the case of Simon Kishanto Kudate v District Land Registrar; Tikoishi Ole Nampaso & another (Interested Parties) [2022] eKLR, which explained the principle of res judicata. He refuted the claim that the applicant is seeking to re-litigate the issues that had been decided by the court, and stated that the application is purely for review under section 80 of the Civil Procedure Act and order 45 rule 1 of the Civil Procedure Rules, on account of an apparent error and/or mistake on the face of the record. He reiterated that the issue of the application dated 6th June 2024 being res judicata, does not arise. 10.Mr Chebiego disputed the argument raised by the respondent that there is no judgment capable of review and relied on the case of Peter Kirika Githaiga & another v. Betty Rashid [2016] eKLR, which held that even an order is a formal expression of the decision of court and one can apply for review on it. He maintained that there is an error or mistake apparent on the face of the record, which is self-evident and it does not require elaborate argument to be established. He cited the case of Paul Mwaniki v NHIF Board of Management [2020] eKLR, to support his argument. Counsel referred to the cases of Chandrakhant Joshibhai Patel v R (2004) TLR, 218 and Attorney General & O’rs v Boniface Byanyima HCMA No. 1789 of 2000, which held that in applications where review is sought, the errors must be so manifest and clear without requiring a long-drawn process of reasoning on issues raised. 11.Counsel stated that the applicant has sufficiently demonstrated that the ruling delivered on 17th May 2024, appears to have considered a different application from the one canvassed by the parties. He stated that the court indicated that the supporting affidavit had been sworn by counsel instead of the applicant. In addition, that some parts of the ruling referred to prayers and pleadings foreign to this matter, which shows a mistake or apparent error on the face of record. 12.Mr. Chebiego argued that the matters raised are purely on review and are not res judicata, as it was the court which considered the wrong application, omitted to consider documents already on record, or incorporated portions of another matter into the ruling and these issues are to be determined in the application for review on their merits. Counsel urged this court to dismiss the notice of preliminary objection dated 5th November 2024 with costs, and set down for hearing on merits, the applicant’s application dated 6th June 2024. Analysis and Determination. 13.This court has considered the notice of preliminary objection and the written submissions filed by both counsel. The issue that arises for determination is whether the notice of preliminary objection is merited. 14.What constitutes a valid preliminary objection was discussed in the case of Mukisa Biscuits Manufacturing Ltd –vs- West End Distributors Ltd (1969) EA 696, which held that:-“---a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration.”In the same case Sir Charles Newbold, P, stated as follows-“a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop.” 15.The respondent herein has raised a preliminary objection on the basis that the application dated 6th June 2024, offends the doctrine of res judicata. The doctrine of res judicata is provided for in section 7 of the Civil Procedure Act, Cap 21 Laws of Kenya, which states 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.” 16.In the case of Abok James Odera vs. John Patrick Machira Civil Application No. Nai 49 of 2001, the Court set out what must be present for the doctrine of res judicata to apply. That is-“(i)a previous suit in which the matter was in issue;(ii)the parties were the same or litigating under the same title;(iii)a competent Court heard the matter in issue; and(iv)the issue had been raised once again in a fresh suit.” 17.In this case, it is not disputed that the parties are the same and they are litigating under same title. What is in dispute is whether the issues raised in the application dated 10th August 2023 and those in the application dated 6th April 2024, are similar. The answer is in the negative. This is because the subject of the former application was leave to file an appeal out of time, while the latter is an application for review of the ruling dated 17th May 2024, which dismissed the former application. The second application addresses the issue of review which is anchored on the provisions of section 80 of the Civil Procedure Act and order 45 of the Civil Procedure Rules, 2010, which this court cannot address at this juncture, as that would be tantamount to going into the merits of the application dated 6th June 2024. 18.This court is of the finding that the application dated 6th June 2024, does not offend the doctrine of res judicata, as it seeks review of the court orders dismissing the application dated 10th August 2023. In concluding my decision, the issues in the second application are not similar to the issues raised in the earlier application, and the court did not address the issue of review in its Ruling of 17th May 2024, so as to make the second application res judicata. 19.This court finds that the notice of preliminary objection lacks merits and it is hereby dismissed with costs to the applicant, which shall be in the cause. This court shall forthwith set down the application dated 6th June 2024 for mention for directions on its disposal.It is so ordered. DATED, SIGNED AND DELIVERED AT KIAMBU ON THIS 19TH DAY OF JUNE, 2026.NJOKI MWANGIJUDGERuling delivered through Microsoft Teams Online Platform. In the presence of:-Mr. Agoi Polycarp for the respondent (applicant in the PO).Mr. Chebiego for the applicant (respondent in the PO).Ms Julia – Court Assistant.