https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8267

NCK v GVK (Civil Suit E014 of 2025) [2026] KEHC 8267 (KLR) (Family) (25 May 2026) (Ruling) Neutral citation: [2026] KEHC 8267 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Civil Suit E014 of 2025 CJ Kendagor, J May 25, 2026 Between NCK Claimant and GVK Respondent Ruling 1.The marriage between the parties in this case was dissolved, and a decree absolute was issued on 1st August, 2019. The Claimant filed an Originating Summons dated 14th February, 2025 seeking the division of matrimonial property in respect of the properties listed in the application. 2.The Respondent filed a Preliminary Objection that the matter is res judicata, the matter having been litigated and determined in NCK vs GVK in the High Court at Nairobi, Family Division, Civil Suit No. 66 of 2012 (OS). 3.The Claimant filed a response to the Preliminary Objection via a replying affidavit dated 2nd December, 2025. 4.Both parties filed submissions, and this ruling is on the Preliminary Objection. 5.The Respondent submitted that matter OS 66 of 2012 was over the same set of facts and between the same parties, and that, having been dismissed on 3rd November, 2015, the present matter is res judicata. 6.The Claimant submitted that the OS 66 in 2012 was dismissed at a preliminary stage because the marriage had not been dissolved and argued therefore that the marriage having been dissolved, the issue of division of matrimonial property was thus ripe for determination. 7.After reviewing the pleadings, submissions by both parties, I find the issue for determination to be whether the matter is res judicata and, accordingly, whether this Court has jurisdiction to hear and determine it. 8.Res judicata is anchored in Section 7 of the Civil Procedure Act Cap 21 which states:“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 the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court”. 9.The Black’s law Dictionary 10th Edition defines res judicata as;“An issue that has been definitely settled by judicial decision … the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…” 10.In Qayrat Foods Limited v Safiya Ahmed Mohamed & 6 others {2020} eKLR, the court cited James Karanja alias James Kioi (Deceased) {2014} eKLR, which outlined the ingredients of res judicata as: -“For the doctrine of Res Judicata to apply, three basic conditions must be satisfied. The party relying on it must show: -(a)That there was a former suit or proceeding in which the same parties as in the subsequent suit litigated;(b)the matter in issue in the latter suit must have been directly and substantially in issue in the former suit;(c)that a court competent to try it had heard and finally decided the matters in controversy between the parties.” 11.I have looked at the Ruling that determined the matter in High Court at Nairobi, Family Division, Civil Suit No. 66 of 2012 (OS) to ascertain whether the issues in this matter were heard and finally decided in that matter. The Judge stated as follows;“ 14.The result is that the preliminary objection taken out by the respondent is sustained. The court does not have jurisdiction under section 7 of the Matrimonial Property Act to divide the matrimonial property between the applicant and the respondent during unbroken coverture. The originating summons dated 31st October, 2012 is dismissed. This is a family dispute and therefore each party to pay own costs for the summons and the preliminary objection.” 12.In the above matter, there is no doubt that the matter was between the parties herein. The decision concerned a preliminary objection that the claimant had moved the court under section 7 of the Matrimonial Property Act 2013, seeking the division of matrimonial property before the marriage had been dissolved. The Court analysed the same, comparing it with the jurisdiction provided by Section 17 of the Act on declaratory orders that may be sought regarding parties’ beneficial interest in matrimonial property without severing the same. Because the marriage had not been dissolved, Section 7 had been prematurely invoked, and the Court could not therefore proceed to hear the case for the division of matrimonial property. 13.The marriage between the parties in this case was dissolved, and a decree absolute was issued on 1st August, 2019. The claimant has now applied for the Court to determine whether the property is matrimonial property and, if so, how it should be divided. 14.Res judicata applies when a Court has rendered a decision determining the issues in dispute, rendering any subsequent legal action unwarranted. In this case, the issue of the division of matrimonial property was not heard and determined in the previous case. The ruling on the Preliminary Objection in High Court at Nairobi, Family Division, Civil Suit No. 66 of 2012 (OS) does not bar the Claimant from filing a new case on the same subject matter. 15.I conclude that the present case meets the criteria for admissibility and, accordingly, this Court has jurisdiction to hear and determine it. 16.The Notice of Preliminary Objection dated 18th November, 2025 is dismissed. Costs shall be in the cause. 17.Orders accordingly. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 25TH DAY OF MAY, 2026.…………………………C. KENDAGORJUDGEIn the presence of:Court Assistant: BerylMs. Kiarie, advocate for the ClaimantNo attendance for the Respondent