https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/421

**REPUBLIC OF KENYA** **IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT KEHANCHA** **ELC CASE NO. E058 OF 2025** **JULIUS BURUNA KIMUNE…………………….PLAINTIFF/RESPONDENT** **VERSUS** **MARY WANKURU………………………………DEFENDANT/APPLICANT** **RULING** 1. The defendant filed a notice of motion dated 29th June 2026 seeking for the following orders: 2. THAT the suit be declared null and void abinitio as it is Res judicata. 3. THAT the Judgment and Decree issued in this suit be set aside, nullified and/or revoked as it is Res Judicata. 4. THAT the plaintiff be ordered to pay costs for the suit and this application 5. The application is based on the grounds on the face of the application and the supporting affidavit sworn by the defendant on 29th June, 2026. The grounds are that the plaintiff had filed an earlier case being KEHANCHA SPM ELC CASE NO. E012 of 2022 between himself and the defendant seeking orders similar to the ones in this suit. That the suit was heard on merits and judgment issued in favour of the defendant on 25/3/2025 as per the judgment annexed and marked “MW1”. That instead of filing an appeal and or review of the judgment in Kehancha SPM ELC NO. E012 OF 2022, the plaintiff unlawfully brought this case before this Honourable Court and the same amounts to Res judicata. That the plaintiff willfully misled this court by not disclosing that he had earlier filed Kehancha SPM ELC E012 OF 2022 between the same parties and over the same subject matter. That the plaintiff has obtained a judgment in this case which is conflicting from the judgment in Kehancha SPM ELC Case No. E012 OF 2022 and the same has caused total anarchy, confusion and lack of implementation of the orders of this Honourable Court as there are two conflicting judgments. That the plaintiff is in the process of implementing the judgment of this Honourable Court. 6. The plaintiff/respondent filed a replying affidavit in opposing the application. The grounds are that the application is frivolous, incompetent, misconceived and an abuse of the court process. That Kehancha SPM ELC NO. E012 OF 2022 was never heard and determined on its merits. That the suit was struck out after finding that it was fatally incompetent. That there was no judgment on merits capable of giving rise to the doctrine of res judicata. That a suit struck out for incompetence is not finally determined and does not operate as res judicata. That the defendant raised a preliminary objection that the present suit was res judicata in her defence, participated in the hearing of the case before judgment was delivered. That the issue of res judicata cannot be re-litigated through the present application. 7. The application was canvassed by way of oral submissions. Counsel for the defendant reiterated the averments contained in the applicant while the plaintiff relied on the averments in his replying affidavit. **Determination** 1. The doctrine of res judicata is set out in Section 7 of the [Civil Procedure Act](https://kenyalaw.org/akn/ke/act/1924/3) which states as hereunder – **“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 can 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.”** 1. The [Civil Procedure Act](https://kenyalaw.org/akn/ke/act/1924/3) also provides explanations with respect to the application of the res judicata doctrine. Explanations 1-3 are 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.’’** 1. Before dealing with the issue of res judicata I have to determine first whether I have jurisdiction to hear the said application after delivery of judgment on merit after the defendant abandoned her preliminary objection dated 22/1/2026 which raised the issue of the suit being res judicata by withdrawing the same. **Whether this Court is functus officio**? 1. The doctrine of functus officio is one of the expressions in law that seeks to achieve finality in litigation. In the case of **Telkom Kenya Limited v John Ochanda (Suing on his Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited) [2014] eKLR** the Court of Appeal held that: ***“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon.”*** 1. Further, in **Mohmed Dagane Falir v Alfonce Mutuku Muli & another [2020] eKLR,** Odunga J., on the doctrine of functus officio held as follows- ***“I associate myself with the position adopted by the Supreme Court decision in Raila Odinga & 2 Others vs. Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR where the Supreme Court cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 to the effect that:*** ***“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter...The [principle] is that once such a decision has been given, it is (subject to any right of appeal to superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision maker.”*** ***That position however clearly applies to a situation where the Court has pronounced itself on merits. It cannot once more revisit the same decision with a view to arriving at a different decision. However, the court is not barred from dealing with the matter in order to facilitate its decision.”*** 1. This suit was heard and determined vide a judgment delivered on 17th June 2026. The said judgment has neither been varied and/or set aside by a Court of competent jurisdiction nor has the defendant or any other dissatisfied party lodged an appeal against it. For this reason, the judgment delivered on 17th June, 2026 is still binding to the parties herein and to this Court. 2. The Court of Appeal in the case of **Dickson Muricho Muriuki v Timothy Kagondu Muruiki & 6 others [2013] eKLR** when dealing with the issue of functus officio held that – ***“…we are of the view that once this Court has pronounced the final judgment, it is functus officio and must down its tools. In the absence of statutory authority, the principle of functus officio prevents this Court from re-opening a case where a final decision and judgment has been made. We bear in mind that in the new constitutional dispensation, most cases will end at the Court of Appeal and it is inadvisable for this Court to be able to issue stay orders after delivery of its judgment. We remind ourselves that the principle of functus officio is grounded on public policy which favours finality of proceedings…”*** 1. Bound by the aforementioned Court of Appeal holding, and in view of the fact that the judgment delivered on 17th June, 2026 is still binding on the parties, this Court finds that it is functus officio. The application dated 29/6/2026 seeks to re-open the case and invites this court to arrive at a different decision. 2. In the end, this Court finds that the application dated 29th June, 2026 is bereft of merits. It is hereby dismissed with costs to the plaintiff. **Dated, Signed and Delivered in open Court at Kehancha on this 31st day of July, 2026 virtually via Microsoft Teams.** **J.P. NANDI** **SENIOR PRINCIPAL MAGISTRATE** **In the presence of:** **Mr. Mangera/Enock…….Court Assistant** **Plaintiff……….Present** **Defendant……..Absent** **Advocate for defendant/applicant……..Mr. Nyangi present** **Court: Leave to appeal granted**