https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/252

Concorde Saving and Credit Society Ltd v Huma (Tribunal Case 279 of 2020) [2026] KECOPT 252 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KECOPT 252 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case 279 of 2020 J Mwatsama, Ag Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members June 4, 2026 Between Concorde Saving and Credit Society Limited Claimant and George Huma Respondent Ruling 1.The Notice of Preliminary Objection dated 9th September,2025 was filed by the Claimant to the effect that the Honourable Tribunal lacks jurisdiction to hear and determine the Respondent's application dated 26/06/25. 2.According to the Claimant, the Respondent has filed multiple applications seeking stay of execution, temporary injunction restraining execution, review and/or setting aside of the decree of judgment delivered by the Honourable Tribunal on 18/10/2023. 3.It is also the Claimant’s position that the application dated 26/06/25 is substantially similar to the application dated 16/01/2024 which was heard on merit and conclusively determined by the Honourable Tribunal in a Ruling delivered on 28/11/2024, and no appeal was lodged and as such, the present application is res judicata, an abuse of the court process, incompetent for want of jurisdiction and barred by the doctrine of functus officio. 4.This Tribunal gave directions for the Notice of Preliminary Objection to be filed, with the Respondent given directions to file a response and submissions, which he didn’t. 5.The Claimant filed his submissions dated 4th March,2026 stating among others that the application is res judicata and an abuse of the court process and should be struck out with costs as the Tribunal is functus officio. Is the Application dated 26/06/25 substantially similar to the Application dated 16/01/2024 and as such res judicata? 6.Our beginning point will be to look at the two applications and the prayers or orders they were seeking. The first application dated 16/01/2024 sought among others:i.That the Honourable Tribunal be pleased to grant stay and issue temporary order of injunction restraining the Claimant from executing the judgement entered on 18th October 2023, andii.That the Decree dated 6th December 2023 be reviewed and set aside 7.The Tribunal on 28/11/2024 found that application to lack merit and dismissed it with costs. 8.The second Application dated 26/06/25 sought among others:i.That the Honourable Tribunal be pleased to set aside the judgement entered against the Defendant on 18th October 2023 and the subsequent decree dated 6th December 2023, andii.That the Honourable Court be pleased to stay the execution of the judgement dated 18th October 2023 and the decree passed on the 6th December 2023 pending the determination of the application 9.In our humble opinion, the two applications are similar as they both seek stay of execution and setting aside of the same judgement. What is different from the two applications are the reasons given for both and not what is being sought - what is being sought is similar, and that raises the fundamental question as to whether what is being sought in the second application has already been determined in the ruling dated 28/11/2024 and as such is res judicata. 10.Numerous court cases have dealt substantively with the question of res judicata, like the case of Wamanda & 2 others v Egoli Estateds Limited & another (Environment and Land Case Civil Suit 103 of 2020) [2024] KEELC 1416 (KLR) (14 March 2024) (Ruling) where the courts stated that:13.In the case of John Florence Maritime Services Limited & another vs Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment), the Supreme Court delved into an in-depth discussion of the concept of res judicata thus; “This court in the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another Motion No 42 of 2014 [2016] eKLR (Muiri Coffee case) held as follows regarding the doctrine of res judicata: "Res judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights. Such a perception has a basis in comparative jurisprudence; in the Ugandan case of Hon Norbert Mao v Attorney-General, Constitutional Petition No 9 of 2002; [2003] UGCC3, the petitioner brought an action on behalf of 21 persons from his constituency, for declarations under article 137 of the Uganda Constitution, and for redress under article 50 of that Constitution. The matter arose from an incident in which officers of the Uganda Peoples Defence Forces attacked a prison, and abducted 20 prisoners, killing one of them. Unknown to the petitioner, another action had already been filed under article 50, seeking similar relief; and Judgment had been given in Hon Ronald Reagan Okumu v Attorney-General, Misc Application No. 0063 of 2002, High Court HCT 02 CV MA 063 of 2002. The Constitutional Court dismissed the petition, on a plea of res judicata, declining the petitioner’s pleas that certain important constitutional declarations now sought, had not been accommodated in the earlier Judgment. In Silas Make Otuke v Attorney-General & 3 others, [2014] eKLR, the High Court of Kenya agreed with the Privy Council decision in Thomas v The AG of Trinidad and Tobago (1991) LRC (Const) 1001, in which the Board was “satisfied that the existence of a constitutional remedy as that upon which the appellant relies does not affect the application of the principle of res judicata”.54. The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively. It emerges that, contrary to the respondent’s argument that this principle is not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata is not affected by the substantial-justice principle of article 159 of the Constitution, intended to override technicalities of procedure. Res judicata entails more than procedural technicality, and lies on the plane of a substantive legal concept.56.The learned authors of Mulla, Code of Civil Procedure, 18th Ed 2012 have observed that the principle of res judicata, as a judicial device on the finality of court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p 293): The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.” The essence of the res judicata doctrine is further explicated by Wigram, V-C in Henderson v Henderson (1843) 67 ER 313, as follows:… where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time” [emphasis supplied].Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a court of competent jurisdiction. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, (2010) eKLR, under five distinct heads: (i) the matter in issue is identical in both suits; (ii) the parties in the suit are the same; (iii) sameness of the title/claim; (iv) concurrence of jurisdiction; and (v) finality of the previous decision. That courts have to be vigilant against the drafting of pleadings in such manner as to obviate the res judicata principle was judicially remarked in ET v Attorney-General & another, (2012) eKLR, thus: The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi v National Bank of Kenya Limited and others, (2001) EA 177 the court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the court quoted Kuloba J, in the case of Njangu v Wambugu and another Nairobi HCCC No 2340 of 1991 (unreported) where he stated, ‘If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face-lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata.” 11.From the above elaborate explanation of the legal concept of res judicata, it goes without saying that the second application dated 26/06/2025 is raising the same issues for determination (stay of execution and setting aside) that were raised in the first application dated 16/01/2024 and as such, the second application is res judicata. Therefore, the reasons given for the second application are immaterial as to allow the second application will also be allowing the Respondent to have a second bite at the cherry, which is against the public policy that litigation has to come to an end at some point, and parties cannot be allowed to litigate by installment forever. Final Ordersi.The Notice of Preliminary Objection dated 9th September,2025 is found to have merit.ii.Subsequently, the Notice of Motion Application dated 26/06/25 is struck off with costs. RULING DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 4TH DAY OF JUNE, 2026.HON. J. MWATSAMA AG. CHAIRPERSON SIGNED 4/6/2026HON. BEATRICE SAWE MEMBER SIGNED 4/6/2026HON. FRIDAH LOTUIYA MEMBER SIGNED 4/6/2026HON. MICHAEL CHESIKAW MEMBER SIGNED 4/6/2026HON. P. AOL MEMBER SIGNED 4/6/2026Court Assistant - MutaiNo Appearance by PartiesRuling delivered in absence of partiesHON. J. MWATSAMA AG. CHAIRPERSON SIGNED 4/6/2026