https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11541

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI HIGH COURT** **CIVIL DIVISION** **CIVIL CASE NO.194 OF 2019** **SAFARICOM PLC…..............................PLAINTIFF/APPLICANT** **-VERSUS-** **SIMON BILLY KINUTHIA………...................…..1ST DEFENDANT** **BRIAN WAMATU NJOROGE….................………2ND DEFENDANT** **BENEDICT KABUGI NDUNGU…3RD DEFENDANT/RESPONDENT** **RULING** 1. By Notice of Motion dated 29th January 2026, which is expressed to be brought under the provisions of Sections 1A and 1B of the Civil Procedure Act, order 2 Rule 15(1)(a) and Rule 15(2) of the Civil Procedures Rules the Plaintiff/Applicant is seeking for the following orders: 2. Spent...... 3. That there be stay of further proceedings pending the hearing and determination of the application. 4. That the counterclaim filed by the 3rd Defendant and dated 22nd April 2020 be struck out in its entirety for failure to disclose a reasonable cause of action. 5. That the costs of this application be borne by the 3rd Defendant. 6. The Application is based on the grounds on the face of it and the annextures thereto. 7. By Notice of Preliminary Objection dated 13th February 2026, the 3rd Defendant/Respondent opposes the Plaintiff/Applicant’s Application dated 29th January 2026 and seeks this Honourable court to dismiss and/strike out the application with costs to the 3rd Defendant/ Respondent on the ground that: **The Plaintiff/Applicant’s Application is res judicata since an identical application by the Plaintiff dated 12th March 2024 seeking the very same orders to strike out the 3rd Defendant/Respondent’s Counterclaim dated 22nd April 2020 was heard, determined and dismissed by this Honourable Court (Hon. Justice Janet Mulwa) vide the Ruling dated and delivered on 27th March 2025**. 1. In support of the Preliminary Objection dated 13th February 2026, the 3rd Defendant/Respondent filed list of authorities dated 24th June 2026. 2. The Plaintiff/Applicant filed their Plaintiff’s list & bundle of authorities dated 23rd June 2026 in opposition of the 3rd Defendant’s Preliminary Objection dated 13th February 2026. **Oral Submissions** 1. On 24th June 2026, learned counsel on record for the parties made oral submissions in open court on the Preliminary Objection dated 13th February 2026. Learned Counsel for the 3rd Defendant/Respondent submitted that the Preliminary Objection is in opposition to the Application dated 29th January 2026. Furthermore, counsel submitted that the Preliminary Objection is anchored on the sole ground that the Application offends the doctrine of *Res Judicata*. 2. Counsel stated that the Court has no jurisdiction to determine that application and relied on George W M Omondi & another v National Bank of Kenya Ltd & 2 others [2001] KEHC 841 (KLR), which is in the 3rd Defendant’s List of Authorities. Counsel submitted that Justice Ringera stated that a plea of Res Judicata may be raised as a Preliminary Objection. 3. Counsel also relied on Republic v Registrar of Societies, Kenya & 2 others; Kirima & 2 others (Ex parte) [2017] KEHC 9603 (KLR) where Justice Odunga reiterated a similar position. 4. In addition, counsel submitted that the doctrine of Res Judicata applies to substantive suits and to interlocutory application. Counsel relied on Kanorero River Farm Ltd & 3 others v National Bank of Kenya Ltd [2002] 2 KLR 207 to support his position. 5. Counsel stated that the Preliminary Objection before the court is competent and that the application offends the doctrine of Res Judicata as the Applicant/Plaintiff sought similar orders vide application dated 12th March 2024 seeking the 3rd Defendant’s counterclaim be struck out. Justice Mulwa dismissed the application and thus the current application is an attempt to re litigate the same application heard and determined by Justice Mulwa. 6. Counsel submitted that the principles and elements of Res Judicata are codified by Section 7 of the Civil Procedure Act and urged the court to find the application dated 29th January 2026 barred by the doctrine of Res Judicata as expressed by the elements under Section 7. Counsel also relied on the 3rd Defendant’s list of authorities. 7. Counsel prayed that the Plaintiff’s application dated 29th January 2026 be struck out with costs to the 3rd Defendant. 8. Counsel for the Plaintiff submitted that they are opposed to the Preliminary Objection and that the Plaintiff’s list of Authorities dated 23rd June 2026 stated what a Preliminary Objection is. 9. Counsel stated that if the facts are contested then a Preliminary Objection is not the best way to move the court. Counsel submitted that the application dated 12th March 2024 sought to strike out the 3rd Defendant’s counter claim for being an abuse of the court process done to the existence of costs. Counsel stated that the current application is seeking to strike out the counterclaim for want of a cause of action. 10. Counsel submitted that the fact that there is existence of contested facts then the Preliminary Objection is not proper. Counsel prayed that the Preliminary Objection be dismissed with costs. 11. The 1st Defendant was not opposed to the Preliminary Objection. **Analysis and Determination** 1. I have carefully read the Authorities cited on record in support and in opposition to the Preliminary Objection. I have also considered the oral submissions of learned Counsel on record. This Ruling is confined to the Preliminary objection which raises the following issues for determination: 2. Whether the Plaintiff’s application dated 29th January 2026 is barred by the Res judicata doctrine. 3. Who should bear the costs of the Preliminary Objection. 4. The doctrine of res judicata is provided for under Section 7 of the Civil Procedure Act 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.** 5. Section 7 subsection 4 of the Civil Procedure Act provides that: any matter which might and ought to have been made a ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in that suit. 6. In Independent Electoral and Boundaries Commission v Maina Kiai & 5 others [2017] KECA 477 (KLR), the Court of Appeal identified the essential elements of res judicata as follows: the matter in issue must be directly and substantially the same as that in the former suit; the former suit must have been between the same parties or parties claiming under them, litigating under the same title; the matter must have been heard and finally determined; and the former court must have been competent. These elements must exist conjunctively. 7. The Supreme Court in John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) stated that for res judicata to be invoked in a civil matter, there must be a former final judgment or order on the merits, rendered by a court with jurisdiction, involving identical parties, subject matter and cause of action. The Court explained that the doctrine is founded on finality, which is a matter of public policy intended to prevent multiplicity of suits, protect parties from repetitive litigation and promote the orderly administration of justice. 8. On whether res judicata may be raised by way of preliminary objection, the Court is guided by **Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (1969) E.A.696**. A preliminary objection must raise a pure point of law and cannot be founded on disputed facts requiring evidence. The Supreme Court in John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) recognized that res judicata may involve questions of both fact and law and that the party invoking it bears the burden of placing sufficient material before the Court. 9. In the instant case, the Preliminary Objection does not depend on external or disputed evidence. The Application dated 12th March 2024, the Application dated 29th January 2026 and the Ruling delivered on 27th March 2025 all form part of the record of this suit. Their parties, prayers, grounds and disposition are readily ascertainable from the Court file. No oral evidence is required to establish them. The legal effect of that undisputed record is therefore a proper preliminary question. The Plaintiff’s reliance on Francis Wakahiu Theuri v Monicah Njeri & 33 others does not render the objection incompetent. 10. On the application of Section 7 of Civil Procedure Act, there is no dispute as to the identity of the parties or the capacity in which they litigate. Both Applications were filed by Safaricom PLC, as Plaintiff, against Benedict Kabugi Ndung’u, as the 3rd Defendant, in this same suit. The earlier Ruling was delivered by the High Court, which had jurisdiction to determine an Application under Order 2 Rule 15 of the Civil Procedure Rules. 11. The Ruling dated 27th March, 2025 was final on the interlocutory issue presented to the Court. It dismissed the Plaintiff’s request to strike out the 3rd Defendant’s Counterclaim and awarded costs to the 3rd Defendant. It was not a temporary or provisional order and did not reserve the issue for determination in a subsequent Application. Unless reversed on appeal or set aside on review, that determination remains binding upon the parties and the Court. 12. The Plaintiff seeks to distinguish the Applications on the basis that the former invoked Order 2 Rule 15(1)(d), while the present one invokes Order 2 Rule 15(1)(a). The Court appreciates that the two provisions set out distinct grounds. Rule 15(1)(a) addresses whether a pleading discloses a reasonable cause of action or defence in law, whereas Rule 15(1)(d) addresses whether a pleading is otherwise an abuse of the process of the Court. 13. The Court must nevertheless consider the substance of the two Applications and not merely the different statutory provisions cited. Both Applications attack the Counterclaim dated 22nd April, 2020. Both seek the same substantive order that the Counterclaim be struck out in its entirety before trial. The present Application does not challenge an amended Counterclaim which has subsequently been filed. It seeks to strike out the same pleading which was before the Court when the earlier Application was determined. 14. The grounds presently advanced were equally available when the Plaintiff filed and prosecuted its earlier Application. Whether the Counterclaim pleaded a violation, loss or damage personal to the 3rd Defendant; whether it contained material facts sufficient to sustain a claim; and whether the 3rd Defendant could pursue relief on behalf of other subscribers were all matters apparent from the face of the Counterclaim filed on 22nd April, 2020. They were not brought into existence by any event occurring after the Ruling of 27th March, 2025. 15. By operation of section 7 subsection 4 of Civil Procedure Act, a party is required to bring forward its whole case. A party cannot reserve an available ground of attack and, after an adverse determination, return to seek the same relief on that ground. 16. This Court, being a court of coordinate jurisdiction, cannot sit on appeal over the Ruling of 27th March, 2025. If the Plaintiff considered that the Court erred in declining to strike out the counterclaim, the proper recourse lay in appeal or, where legally available, review. Filing a fresh Application under another subparagraph of Order 2 Rule 15 is not an alternative appellate process. 17. Taking the totality of the material before this Court and the findings made herein above, this court finds that all the elements of res judicata have been established. The parties and the capacities in which they litigate are the same; the subject matter is the same Counterclaim; the substantive relief sought is identical; the former Court was competent; and the earlier Application was heard and finally determined. The grounds now advanced were available and ought to have been raised in the earlier Application. The present Application is therefore barred by res judicata doctrine. 18. This finding does not determine the ultimate merits of the 3rd Defendant’s Counterclaim. It only precludes the Plaintiff from repeatedly seeking the summary striking out of the same pleading. The Counterclaim remains subject to proof at the hearing and to any lawful orders that may be made. 19. The upshot is that the 3rd Defendant’s/Respondent’s Preliminary Objection dated 13th February, 2026 is upheld. The Plaintiff/Applicant’s Notice of Motion dated 29th January, 2026 is dismissed for being res judicata, with costs to the 3rd Defendant/Respondent. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 23RD DAY OF JULY, 2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.** **KENNEDY KANDET** **JUDGE** **IN THE PRESENCE OF:** **KENNETH FOR THE PLAINTIFF/ APPLICANT** **NYAMARI HB FOR SWAKA FOR THE 1ST DEFENDANT** **MS MUTINDA HB FOR GITHUNGURI FOR THE 2ND DEFENDANT** **OMOLO FOR THE 3RD DEFENDANT** **KIMOSOP FOR THE INTENDED INTERESTED PARTIES**