https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12368

REPUBLIC OF KENYA HIGH COURT OF KENYA AT NAIROBI ANTI-CORRUPTION & ECONOMIC CRIMES DIVISION ACEC MISC. APPLICATION NO. **E039** OF 2025 ASSETS RECOVERY AGENCY………………...…………………..APPLICANT -VERSUS- ELIAS ENDALE GAMADA………………………………………RESPONDENT **RULING** The applicant approached this court for preservation orders vide originating motion dated 18-08-2025. On 19-08-2025, Honourable Lady Justice M. Muigai granted the preservation orders following which the respondent filed a notice of motion dated 30th October 2025 to which this ruling relates praying for the following; 1. THAT the Honourable Court do find that the current preservation proceedings are incompetent and an abuse of the process of the court. 2. THAT this Honourable Court set aside the orders issued on the 19th of August 2025 by Hon. Lady Justice M. Muigai. 3. THAT the costs of this application be provided for. The application is based on 16 grounds on the face of it, summary of which is that there was another suit filed in this court the same being ACEC suit number E017 of 2025 (hereinafter referred to as ‘the previous suit’) which this court struck out on 31-07-2025 and therefore this matter is *res judicata* and this the court became *functus officio*. In addition to the grounds, the respondent filed a supporting affidavit sworn on 30-10-2025. The affidavit does not say much than what is contained in the grounds save for emphasis that the filing of this application was an attempt to circumvent the court ruling in the previous suit and to revive a matter which has been conclusively determined on statutory and jurisdictional grounds. Alfred Musalia, an investigator working with the applicant swore an affidavit in opposition to the motion. In the said affidavit, Alfred gives a history of how the applicant discovered and finally investigated the respondent’s activities culminating to filing and obtaining preservation orders in this court’s miscellaneous civil application number E061 of 2024 and later filing of the previous suit. He adds that the previous suit was struck out on 31-07-2025 because the preservation orders had lapsed. He argues that the court did not hear and determine the earlier matter on merit and the issue whether the motor vehicle and the money, the subject of the two matters are proceeds of crime is still alive. He adds that the respondent has not met the threshold of Section 89(1) of Proceeds of Crime and Anti-Money Laundering Act (hereinafter referred to as ‘POCAMLA’). The application was argued by way of written submissions with the respondent filing submissions dated 1-12-2025 while the applicant filed submissions dated 23-03-2026. I have read the two sets of submissions and in my view there arises two issues. The first one is whether this matter is *res judicata* the previous suit and the second one is whether this court is *functus officio* in respect of issues raised herein. It is common ground that the previous suit was struck out for being incompetent and defective for reasons that the preservation orders in miscellaneous civil application number E061 of 2024 in which the suit was based had lapsed and therefore invalid. Where proceedings or a suit are declared fatally defective or incompetent, it means that they did not meet the threshold of a suit and were non-starters. Once that happens, the party whose suit is struck out is at liberty to file fresh and competent suit of course subject to statutory provisions on limitation. There would be nothing wrong with the party coming back to court to regularise the position by filing a fresh and competent suit. The doctrine of *res judicata* has been ably established and defined. For the doctrine to apply, the previous suit must have been heard and determined on merits by a competent court. This position has been restated in numerous cases including ***John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] KECA 472 (KLR)*** which has been cited by both parties herein. In it the Court of Appeal held that; ‘From the above, the ingredients of res judicata are firstly, that the issue in dispute in the former suit between the parties must be directly or substantially be in dispute between the parties in the suit where the doctrine is pleaded as a bar. Secondly, that the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title and lastly that the court or tribunal before which the former suit was litigated was competent and determined the suit finally.’ The Court of Appeal also held in ***Accredo AG & 3 others v Steffano Uccelli & another [2019] KECA 385 (KLR)*** that; ‘*The test for determining the application of the doctrine of*res-judicata *in any given case is spelt out under* ***section 7*** *of the* ***Civil Procedure Act****. In****Independent Electoral & Boundaries Commission vs MainaKiai & 5 Others [2017] eKLR****, the Supreme Court while considering the said provision held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is:* **"(a) The suit or issue was directly and substantially in issue in the former suit.** **(b) That former suit was between the same parties or parties under whom they or any of them claim.** **(c) Those parties were litigating under the same title.** **(d) The issue was heard and finally determined in the former suit.** **(e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”** Drawing from the above authority, if any of the five elements is lacking, the doctrine would not apply. It is indisputable that the element of merits is missing in this matter as it is admitted that, the previous suit was not decided on merits. This position removes the matter outside the realm of the doctrine of *res judicata*. The respondent concedes in his submissions that the doctrine does not apply in matters dismissed on jurisdictional grounds but argues that the principle of finality nevertheless attaches in this matter because the court’s jurisdiction has already been exhausted and cannot be revived by a fresh filing. This line of submissions is a veiled argument that the matters raised in this matter were *res judicata* the previous suit. It is important to note that even where the court finds that it does not possess jurisdiction over a matter, the reasons behind such finding are the determinant of whether or not a fresh suit can be filed. For instance, where the court finds that it lacks jurisdiction based on statutory exclusion, a fresh suit cannot be brought in the same court or a court of concurrent jurisdiction based on the same facts and evidence but where the court downs its tools on grounds that the suit is fatally defective, the parties can file a fresh suit before the same court curing the defect. This matter falls under the latter. Even if I were to find that the determination in the previous suit was on merits, the application for striking out would be best placed in the forfeiture application and not this miscellaneous application. The applicant has submitted that following granting of preservation orders in this application, it filed forfeiture suit number E048 of 2025 which I have confirmed and which is active with a mention date of today. In civil forfeiture proceedings, once preservation orders are issued under Section 82 of POCAMLA, the application becomes spent with a window of further litigation limited to variation and rescission of the orders under Section 89 of POCAMLA. The respondent argues that the court is *functus officio* on issues raised in this application. The principle of functus office operates where the court has made its decision in a specific matter. It does not apply where the court is being asked to review, revise or reconsider its decision on grounds founded in law or where the court is handling a matter filed differently and separately from the matter in which decision in question was made. The principle should not be confused with the doctrine of *res judicata*. Whereas *res judicata* transcends cases filed in different or the same courts, the principle of *functus officio* is limited to a specific matter where the court has pronounced itself. Where *functus officio* applies, any aggrieved party may go to a higher court or forum seeking to set aside or challenge the decision while in *res judicata*, even the option of appealing the merits is not available to the parties except on the question of whether or not the doctrine applies in the live matter. I subscribe to position held by Honourable Justice A. Mabeya in ***Tuffsteel Limited v Alliance Concrete Limited [2024] KEHC 1007 (KLR)*** thus; *‘From the foregoing, the doctrine of functus officio bars a Court from revisiting a matter once a final judgment has been delivered on merit.’* This court did not make any final decision on whether the assets sought to be forfeited are proceeds of crime. That decision is set to be made in suit number E048 of 2025. The respondent should in my view concentrate in defending that forfeiture suit rather than struggling to set aside the preservation orders in this matter. Asking for setting aside without asking for the main suit to be dismissed is in my view unreasonable. The inevitable conclusion from the above is that, I find no merits in this application and the same is hereby dismissed. I make no orders as to costs. Dated, signed and delivered at Nairobi this **29th** day of **July** 2026. **B.M. MUSYOKI** **JUDGE OF THE HIGH COURT.** Ruling delivered in presence of Miss Irari for the applicant and Mr. Arunga for the respondent.