https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4511

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELC APPEAL NO. E009 OF 2025** **CATHERINE NTHENYA SAMMY..………………………….APPELLANT** **-VERSUS** **DANIEL JOHN KATO NDAMBUKI..........................…..1ST RESPONDENT** **FAMILY BANK................................................................. 2ND RESPONDENT** **COMPLIANCE AUCTIONEERS.....................................3RD RESPONDENT** ***(Being an appeal from the order and ruling of Hon. P. Gesora delivered on 24th April, 2025 Makueni MCELC No. E015 OF 2024)*** **JUDGMENT** 1. This appeal arises from a ruling of Hon. P. Gesora, Chief Magistrate delivered on 24th April, 2025. In this ruling, the trial magistrate reviewed his own ruling of 21st August, 2024 in which he had upheld a preliminary objection raised by the Appellant wherein the 1st Respondent’s suit against her was struck out with costs to the Appellant. 2. The 1st Respondent had filed Milimani Small Claims Case No. SCCC OMM/E03039 of 2023 against the Appellant. The 1st Respondent did not prosecute the Milimani case which was dismissed for want of prosecution on 3rd August, 2023. The 1st Respondent came to Makueni where he filed a fresh suit at Makueni MCELC No. E015 of 2024 against the Appellant and two others. 3. The Appellant filed a preliminary objection on the ground that Makueni MCELC No. E015 of 2024 was res judicata. In a ruling delivered on 21st August, 2024, the trial magistrate upheld the preliminary objection and proceeded to dismiss the 1st Respondent’s suit with costs to the Appellant. The Appellant had her costs assessed at Kshs.75,700/=. 4. The 1st Respondent then moved to court and filed a notice of motion dated 4th December, 2024 in which he sought review of the ruling of 21st August, 2024. In a ruling delivered on 24th April, 2025, the trial magistrate reviewed and set aside his ruling of 21st August, 2024. This is what triggered the filing of this appeal. 5. The Appellant raised the following grounds of appeal: 6. **That the honourable magistrate erred in fact and in law by entertaining and determining the Respondent’s application dated 4th December, 2025 in the above stated determining the Respondent’s application dated 4th December, 2024, notwithstanding the fact that the honourable court lacked the requisite jurisdiction to hear and determine the same, thus rendering the resultant decision null and void ab initio.** 7. **That the honourable magistrate fundamentally erred in law by sitting on appeal of her own ruling delivered on 21st August, 2024, contrary to the settled legal principle that a court lacks jurisdiction to sit on appeal of its own decision, thereby exceeding the scope of judicial review provided under Order 45 Rule 1 of the Civil Procedure Rules, 2010.** 8. **That the honourable magistrate erred in law and fact in reviewing the ruling delivered on 21st August, 2024 based solely on the Respondent’s speculative assertions that the court could have reached a different conclusion, contrary to binding precedents which affirm that a mere change of opinion or dissatisfaction with a decision does not constitute a proper ground for review.** 9. **That the honourable magistrate erred in law by taking into account facts and developments arising after the delivery of the impugned ruling, in complete disregard of the established position that review jurisdiction is confined to facts existing at the time of the original decision.** 10. **That the honourable magistrate erred in law and in fact in failing to appreciate the doctrine of res judicata under Section 7 of the Civil Procedure Act, despite clear evidence that the issues raised in the Respondent’s application had already been adjudicated and conclusively determined in the earlier ruling, thereby subjecting the Appellant to repetitive and oppressive litigation.** 11. This appeal was disposed of by way of written submissions. The Appellant filed submissions dated 20th November, 2025. The 1st Respondent filed submission dated 4th December, 2025. The parties to this appeal highlighted their submission on 15th April, 2026. 12. The Appellant submitted that the trial magistrate having found that the 1st Respondent’s suit was res judicata and dismissed it, he could not again revisit the ruling and set it aside as to do so amounted to the trial magistrate sitting on appeal on his own decision. 13. The 1st Respondent submitted that the fact that he had to borrow to repay the loan which he guaranteed the Appellant amounted to sufficient reason which the trial court found sufficient to enable him set aside his earlier ruling of 21st August, 2024. He submitted that it would be immoral for the court to allow the appeal as that will effectively shield the Appellant from meeting her obligation of repaying the loan amount which he shouldered so as to save his properties which he had used to secure loan taken by the Appellant. 14. This is a first appeal to this court. The duty of the first appellate court was stated in the case of **Selle and Another** **–vs- Associated Motor Boat Co. Ltd & Others (1968) EA 123** as follows: **“.....An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either it has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence of if the impression based on the demeanor of a witness is inconsistent with the evidence in the cases generally”.** 1. I have carefully considered the record of appeal as well as the submissions of the parties. The only issue for determination in this appeal is whether the trial magistrate having found that the suit was res judicata and dismissing it would later set aside his own ruling on application for review. 2. In as much as I sympathize with the 1st Respondent regarding his predicament, the law has to prevail. The Appellant had taken a loan from the 2nd Respondent and the properties of the 1st Respondent offered as security. The Appellant defaulted in repayment forcing the 2nd Appellant to commence the process of realizing the security. The 1st Respondent filed a claim in the Small Claims Court at Milimani against the Appellant but did not prosecute it. The claim was dismissed on 3rd August, 2023. 3. The 1st Respondent then moved and filed a similar suit at Makueni when the 2nd Respondent started the process of realizing the security. The 1st Respondent obtained injunctive orders restraining the sale but the Appellant filed a preliminary objection on ground that the Makueni suit was res judicata. This preliminary objection was upheld and the 1st Respondent’s suit was dismissed with costs to the Appellant. The injunctive orders which were in force were effectively discharged. 4. The 1st Respondent desirous of saving his properties from imminent sale went and borrowed money which he used to repay the outstanding loan. Despite this, the Appellant started pursuing costs which she had been granted. The 1st Respondent then filed an application for review which culminated into setting aside of the ruling dismissing the 1st Respondent’s suit. 5. The question which has to be answered is whether the trial magistrate having found that the suit by the 1st Respondent was res judicata, would again entertain a review on ground that to allow the dismissal to stand would amount to the Appellant evading her responsibility of repaying the loan money which the 1st Respondent paid. The trial magistrate was clearly wrong in entertaining the review on grounds that it had emerged that the 1st Respondent had cleared the loan. The fact remained that the suit filed by the 1st Respondent was res judicata and the payment of the loan amount by the 1st Respondent would not save it from being res judicata. What the trial magistrate did amounted to him sitting on appeal from his own decision. 6. The 1st Respondent’s suit having been dismissed for want of prosecution on 3rd August, 2023, it was not open for him to file a fresh suit as he did herein. The only option which was open to him was to seek setting aside of the dismissal order or file an appeal against the dismissal order. In the case of **Co-operative Bank of Kenya Limited –vs- Cosmas Mrombo Moka –vs- Legacy Auctioneering Services (2019) eKLR**, the Court of Appeal held as follows: **“As stated hereinbefore this court has already addressed its mind as to whether a matter dismissed for want of prosecution could be resuscitated through a fresh suit and the categorical answer was that it could not as doing so would offend the doctrine of res judicata. Consequently, this matter being completely on four with the Njue Njagi matter, we find no justifiable reason to allow a party who has litigated on the same issue to reinstitute a similar suit. In our considered view, the former suit having been dismissed for want of prosecution, it cannot be proper for him to wake up again and decide to start the same process again. We agree with the Appellant this would be contrary to public policy that litigation must come to an end and the best the 1st Respondent could do was to invoke the Appellate process and not filing a fresh suit”.** 1. The trial magistrate having found that the 1st Respondent’s suit was res judicata and proceeding to dismiss it, he would not again entertain a review which would breath life to the suit on ground of sympathy for the 1st Respondent. I therefore find that the Appellant’s appeal is well merited. I allow the same with the result that the ruling delivered on 24th April, 2025 is set aside with no order as to costs as the Appellant was the cause of the mess the 1st Respondent found himself in. **................................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **JUDGMENT SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 16TH DAY OF JULY, 2026.** **IN THE PRESENCE OF:** Mr. Mutuku for Appellant. Mr. Orende for 2nd Respondent. Court assistant - Musyoki