https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12598

Moiz Motors Ltd v Oprisianu & 3 others (Civil Appeal E285 of 2024) [2026] KEHC 12598 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEHC 12598 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Appeal E285 of 2024 PK Rotich, J July 30, 2026 Between Moiz Motors Limited Appellant and Daniel Oprisianu 1st Respondent Wilfred Omatto 2nd Respondent Jackson Khaguli Galaya 3rd Respondent Wilfred Kakau Burudi 4th Respondent (Being an appeal against the ruling and order of Hon. Rawlings Liluma Musiega(SRM) delivered on the 9th day of February, 2024 in Nairobi CMCC No. E420 of 2022) Judgment 1.The 1st respondent vide a plaint dated 28/1/2022 sought judgement against the appellant and the 2nd respondent for general damages and special damages amounting to Ksh.657,372.50 plus interest at court rates and costs. 2.In the plaint, the 1st respondent averred that on or about 30th March, 2019, the plaintiff was lawfully riding as a pillion passenger on motor cycle KMEI 092E along Joseph Kang’ethe Road when the 2nd respondent so carelessly, negligently and/or recklessly drove motor vehicle rregistration No. KCG 897T owned by the appellant that it knocked down and/or rammed into motor cycle KMEI 092E as a result which the plaintiff suffered grievous harm. 3.The appellant and 2nd respondent failed to enter appearance and file defence and therefore, interlocutory judgement against them on 9th December, 2022. 4.The appellant filed a Notice of Motion dated 6/3/203 seeking that the trial court sets aside ex-parte judgement entered against them on 9th December, 2022 and trial court allowed the application on condition that: -1.That the decretal amount be deposited in a joint interest by appellant within 30 days of the court’s ruling.2.That the joint interest earning account shall held by counsel for parties.3.That the appellant pays throw away costs of Ksh.15,000 within 14 days from the date of ruling.4.The appellant files defence and statement within 30 days.5.Breach of any condition shall warrant the Decree Holder to proceed and execute against the appellant 5.The appellant, however, did not comply with the terms above. Instead, the appellant filed another Notice of Motion dated 13/10/2023 seeking review of the ruling delivered by Hon. Musiega on 18/8/2023. In the 2nd application, the appellant again sought to be granted leave to defend the suit stating it has a good defence. The appellant also stated it was he was not served with summons to enter appearance and pleadings. 6.The trial court, in its ruling dated 9th February, 2024 found the appellant’s application dated 13/10/2023 to be res judicata and dismissed the same with costs. 7.Being dissatisfied with ruling of the trial court dated 9/2/2026 the appellant preferred this appeal. The appeal is based on 19 grounds but which can be summarised as follows:1.That the trial magistrate erred in law and fact in dismissing the appellant’s application without considering that the provisions of Article 159(2) 2(d) of the constitution which stipulates that justice shall be administered without regard to technicalities.2.That the learned magistrate erred in law and fact by failing to consider that the court may set aside or vary judgement and any consequential orders upon such terms that are just.3.That the learned magistrate erred in law and fact in failing to consider the defendant’s defence raises triable issued that should go to trial.4.The trial magistrate erred in law and fact in failing to consider that the appellant was not served with summons to enter appearance and has been condemned unheard.5.The learned trial magistrate erred in law and fact by disregarding evidence that the appellant had sold the subject motor vehicle herein at the time of the accident 8.The issue for determination in this mater is whether the trial magistrate erred in law and fact in finding that the appellant’s application dated 13/10/2023 was res judicata. 9.Section 7 of the Civil Procedure Act provides:“No court shall try any suit or issue in which the matter directly and substantially in issue has been in a former suit or has been heard and findings determined by such suit”. 10.The Court of Appeal in Independent Electoral & Boundaries Commission -vs- Maina Kiai & 5 Others (2017) eKLR set out the requirements of res judicata as follows: -1.The matter must be directly and substantially in issue. 2.The matter must have been issue in a former suit between the same parties. 3.The issue must have been heard and finally determined and 4.The court that determined it must have been competent. 11.Further, the Supreme Court in the case of John Florence Martine Services Limited & Another vs. Cabinet Secretary Transport & Infrastructure & 3 Others (Petition number 17 of 2015) (2021) KESC 39 (KLR) CIV (6th August, 2021) (Judgement) held :“It emerges, contrary to the respondent’s argument that this principle is not to stand as a technicality limiting the scope of substantial justice, the relevance of res judicata is not affected by 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 the substantive legal contest”.For res judicata to be invoked in a civil matter the following elements must be demonstrated: -a.There is a former judgement or order of which has filed.b.The judgement or order was on merit.c.The judgement or order was rendered by a court having jurisdiction over the subject matter and the parties; andd.There must between the first and the second action identical parties, subject matter and cause of action.” 12.In both the applications dated 6th March, 2023 and 13th October, 2023 the appellant sought to have the interlocutory judgement dated 9th December, 2022 entered herein against the 1st Appellant set aside and or discharged. In both applications the appellant also sought leave to file its defence stating it raises triable issues and that therefore it should be heard. 13.The application dated 6th March, 2023 was actively rendered in favour of the Appellant and the appellant were allowed to file their defence on the condition outlined above. Iinstead, the appellant chose to file the impugned application dated 13.10.2026. 14.It is very clear the appellant’s application dated 13.10.2026 is res judicata as the issues raised in it are directly and substantially the same as those raised in its application dated 6.3.2023. The court, therefore, declines to interfere with the decision of the trial. 15.The Court of Appeal in Maina Kiai & 5 others case cited above underscored the importance of the doctrine of res judicata thus:“The rule and doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted or hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered wholesome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice”. 16.Further, the Supreme Court in John Florence Marine Services Limited Case stated as follows:“The rationale behind res judicata is based on public interest that there should be an end to litigation to protect a party from facing repetitive litigation over and over the same matter. Res judicata ensures the economic use of the court’s limited resources and timely termination of cases. Courts are already clogged and overwhelmed. They can hardly spare time to repeat themselves on issues already decided upon. It promotes stability of judgements of concurrent courts. It promotes confidence in the court’s predictability which is one of the essential ingredients in maintaining respect for justice and rule of law. Without res judicata, the very essence of the rule of law would be in danger of unravelling uncontrollably”.The upshot of my findings above is that this appeal lacks merit and the same is dismissed with costs.” 17.The upshot of my findings above, is this appeal lacks merit and the same is dismissed with costs to 1st respondent. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS THIS 30TH DAY OF JULY 2026.HON. P. K. ROTICHJUDGEIn the presence of: -Mr. Gachoki for the 1st respondentN/A for the AppellantC/A Kipchirchir