https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12198

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **CIVIL APPEAL NO. E129 OF 2025** **GEORGE KARIUKI NJAU……………………..…………………………………..……APPELLANT** **VERSUS** **DAVID GATEMBU NDUNGU……………………………....................……………RESPONDENT** ***(Being an Appeal from the Ruling and Orders of Hon. P. M. Mugure (Principal Magistrate) delivered on 16th July 2025 in Limuru Civil Case No. E397 of 2022, George Kariuki Njau v David Gatembu Ndungu)*** **JUDGMENT** 1. **BACKGROUND** 2. This appeal arises from the Ruling and Orders of Hon. P. M. Mugure (Principal Magistrate) delivered on 16th July 2025 in Limuru Civil Case No. E397 of 2022, George Kariuki Njau v David Gatembu Ndungu, wherein the trial court upheld a Preliminary Objection raised by the Respondent and consequently dismissed the Appellant’s suit on the ground that it was res judicata. 3. **PROCEEDINGS BEFORE THE TRIAL COURT** 4. The record shows that by a Preliminary Objection dated 15th April 2025, the Respondent challenged the jurisdiction of the trial court to entertain Limuru Civil Case No. E397 of 2022, contending that the suit was barred by the doctrine of res judicata. 5. The Appellant opposed the Preliminary Objection through Grounds of Opposition dated 23rd April 2025, asserting, inter alia, that the objection was premature, misconceived, and an abuse of the court process. 6. The basis of the Respondent’s objection was that the Appellant had previously instituted proceedings against him in MCCC No. 248 of 2013. The said suit was dismissed for want of prosecution on 6th November 2018. Subsequently, the Appellant filed an application dated 10th June 2019 seeking reinstatement of the suit, which application was dismissed on 27th September 2019. 7. Thereafter, the Appellant instituted Limuru Civil Case No. E397 of 2022, founded on substantially the same cause of action and involving the same parties. The Respondent consequently raised the Preliminary Objection, contending that the earlier dismissal of MCCC No. 248 of 2013 and the subsequent dismissal of the application for reinstatement conclusively determined the dispute, thereby rendering the later suit res judicata. 8. Upon considering the parties’ respective submissions, the trial court delivered its ruling on 16th July 2025, upholding the Respondent’s Preliminary Objection and finding that Limuru Civil Case No. E397 of 2022 was barred by the doctrine of res judicata. The suit was accordingly dismissed. 9. Aggrieved by the said ruling and order, the Appellant lodged the present appeal, advancing the following grounds: 1. *That the learned Magistrate erred both in law and in fact in allowing the Notice of Preliminary Objection dated 15th April 2025 and consequently dismissing the Appellant’s suit.* 2. *That the learned Magistrate erred in law and in fact in upholding the Preliminary Objection on the basis of res judicata notwithstanding that the earlier suit had been dismissed for want of prosecution, which dismissal did not amount to a hearing and final determination of the dispute on its merits.* 3. *That the learned Magistrate erred in law and in fact by denying the Appellant an opportunity to be heard on the merits of the case, contrary to the principles of natural justice and the right to a fair hearing.* 4. *That the learned Magistrate misapprehended and misapplied the provisions of Section 7 of the Civil Procedure Act by failing to appreciate that a final determination on the merits is an essential ingredient of the doctrine of res judicata.* 5. *That the learned Magistrate erred in law and in fact by equating a dismissal for want of prosecution with a final adjudication of the dispute, thereby arriving at an erroneous conclusion that the suit was barred by the doctrine of res judicata.* 10. **PARTIES' SUBMISSIONS** 11. The appeal was canvassed by way of written submissions. 12. The Appellant submitted that the learned trial magistrate erred in finding that Limuru Civil Case No. E397 of 2022 was res judicata. Counsel argued that the previous suit, MCCC No. 248 of 2013, was dismissed for want of prosecution and was therefore never heard and determined on its merits. It was contended that a dismissal for want of prosecution does not satisfy the requirements of Section 7 of the Civil Procedure Act and cannot operate as a bar to a subsequent suit founded on the same cause of action. 13. The Appellant further submitted that by upholding the Preliminary Objection, the trial court improperly denied him an opportunity to ventilate his claim and have the dispute determined on its merits, contrary to the principles of substantive justice and the right to a fair hearing. 14. The Respondent, on the other hand, supported the ruling of the trial court and submitted that the dispute between the parties had been conclusively determined. Counsel maintained that the dismissal of the earlier suit and the subsequent dismissal of the application for reinstatement rendered the matter final and incapable of being re-litigated. The Respondent therefore urged the Court to find that the suit before the trial court was properly dismissed as being res judicata and to dismiss the appeal with costs. 15. **ISSUES FOR DETERMINATION** 16. I have considered the Record of Appeal, the ruling of the trial court, the grounds of appeal and the parties' submissions. In my view, the appeal turns on a single issue, namely: 1. *Whether the learned trial magistrate erred in law in finding that Limuru Civil Case No. E397 of 2022 was barred by the doctrine of res judicata.* 17. **ANALYSIS** 18. ***Whether the learned trial magistrate erred in law in finding that Limuru Civil Case No. E397 of 2022 was barred by the doctrine of res judicata.*** 19. The doctrine of “res judicata" is provided for under section 7 of the Civil Procedure Act in 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 issue in which such issue has been subsequently raised, and has been heard and finally decided by such court.*** 1. The Civil Procedure Act has also provided explanations with respect to the application of the res judicata rule in the following terms: ***Explanation (1) —The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it.*** ***Explanation (2) —For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.*** ***Explanation (3) —The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.*** ***Explanation (4) — Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.*** ***Explanation (5) — Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.*** ***Explanation (6) — Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.*** 1. The Supreme Court in ***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.*** 1. 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. 2. The 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.”*** 1. 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].*** 1. Further, the Supreme Court in ***John Florence Maritime Services Ltd & another v Cabinet Secretary Transport & Infrastructure & 3 others [2021] KESC 39 (KLR)*** laid down the elements that must be demonstrated for res judicata to be invoked in a civil matter: ***For res judicata to be invoked in a civil matter the following elements must be demonstrated:*** ***a) There is a former judgment or order which was final;*** ***b) The judgment or order was on merit;*** ***c) The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and*** ***d) There must be between the first and the second action identical parties, subject matter and cause of action.*** ***(See Uhuru Highway Developers Limited v Central Bank of Kenya & others [1999] eKLR and the decision of the Court of Appeal in Nicholas Njeru v Attorney General & 8 others Civil Appeal 110 of 2011 (2013) eKLR)*** 1. The Supreme Court in ***Dina Management Ltd v County Government of Mombasa & 5 others [2023] KESC 30 (KLR)*** stated that the elements set out above are to be conjunctive rather than disjunctive before a suit or an issue is to be deemed *res judicata* on account of a former suit. 2. While I agree with the Respondent that the Court of Appeal in ***Njue Ngai v Ephantus Njiru Ngai & another [2016] KECA 805 (KLR)*** held that a dismissal for want of prosecution was as good as a final judgment in the appeal unless a successful application for setting aside was filed, I must distinguish that case from the present appeal. In the ***Njue Ngai*** case, the main question had been determined on its merits twice, before the Embu Land Disputes Tribunal (***Case No. 26/2000***) and the Provincial Lands Disputes Appeals Committee (***Appeal No. 125/2000***), before the proceedings at the High Court and the Court of Appeal. 3. In the instant context, ***Limuru MCCC No. 248 of 2013*** had not been determined on its merits at any point whatsoever before it was dismissed for want of prosecution. I am persuaded, to find the ***Njue Ngai case*** not binding in this case, by the decision in ***Republic v Kenya Revenue Authority Ex-Parte Stanley Mombo Amuti [2018] KEHC 9745 (KLR)***where Mativo J. (as he then was) held as follows: *14.* ***The ratio of any decision must be understood in the background of the facts of the particular case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision****.* *15. Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases by matching the colour of one case against the colour of another. To decide therefore on which side of the line a case falls, the broad resemblance to another case is not at all decisive.* ***Precedent should be followed only so far as it marks the path of justice, but one must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it.*** (Emphasis my own). 1. With respect, I disagree with the trial court’s position that the Appellant proceeded to have the matter heard but was not successful. In my view, the Appellant’s case has never been heard to determination on the substantive question in ***Limuru MCCC No. 248 of 2013***. I am bound by the Supreme Court’s *ratios* in the ***John Florence Maritim*** and ***Dina Management* *cases*** that for a matter to be *res judicata*, the final judgment or order must be on the merits of the matter. 2. Flowing from the foregoing, I find that the trial court erred in law by upholding the Respondent’s Preliminary Objection. The same ought to have been rejected and dismissed. 3. Consequently, I hereby allow the appeal and make the following orders: - 1. ***The Ruling of the learned trial magistrate delivered on 16th July 2025 is hereby set aside in its entirety and substituted with an order dismissing the Respondent’s Notice of Preliminary Objection dated 15th April 2025 with costs*.** 2. ***The matter is hereby remitted back to the Magistrates' Court for hearing and determination on its merits.*** 3. ***The Appellant shall have the costs of this Appeal***. Dated, signed and delivered virtually in Malindi this 29th day of July 2026. **………………………..** **C.AKAIGWA** **JUDGE** In the presence of