https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11415

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL AND TAX DIVISION CORAM: F. MUGAMBI, J COMM APPEAL NO. E087 OF 2022 EBUBEKIR APPELLANT/RESPONDENT SAHIN ………….………… BETWEEN VERSUS BULENT RESPONDENT/APPLICANT GULBAHAR ………….…….. RULING Background and Introduction 1. For determination is the application dated 16th September 2025, which seeks the following orders and prayers: i. THAT the Court lacks jurisdiction since there is no proper Appeal and/or Record of Appeal on record and therefore this application be heard on priority basis. ii. THAT the Record of Appeal dated 21st March 2023 and lodged in Court on 25th HCCOMMA NO. E087 OF 2022 RULING Page 1 March 2023 be struck out for being filed and served out of time, contrary to the express orders of this Honourable Court (Mabeya J) made on 20th January 2023. iii. THAT the Supplementary Record of Appeal filed on 13th June 2023, long after the 30 days allowed under the Civil Procedure Rules, and without leave of this Honourable Court be struck out in its entirety. 2. The application is supported by the affidavit of BULENT GULBAHAR sworn on even date and is opposed by the Replying Affidavit of EBUBEKIR SAHIN sworn on 10th October 2025. The parties also filed their respective written submissions which I have equally considered. Analysis and Determination 3. The Applicant's primary basis for seeking to strike out the present appeal is that it was filed out of time without leave of the court, while the preliminary point raised by the Respondents is that the matter is res judicata, having already been determined. HCCOMMA NO. E087 OF 2022 RULING Page 2 4. It is necessary to set out the history of this matter to place it in proper context. The appeal arises from a ruling of the trial court dismissing the Appellant's Preliminary Objection dated 25th February 2022. Aggrieved by the decision of the trial court, the Appellant lodged the appeal herein by filing a Memorandum of Appeal dated 5th July, 2022 together with an application for stay of execution. Justice A. Mabeya granted leave to file the record out of time on 20th January, 2023. 5. Subsequently, the Respondent/Applicant filed a further Notice of Preliminary Objection dated 14th June, 2023 alleging, among other things, that the appeal was bad in law for having been filed out of time and without leave, and that the record was incomplete and defective. This objection was dismissed by Justice A. Ong'injo, who, in a ruling dated 21st March 2024, held that the preliminary objection was without merit, as leave had in fact been granted. The Respondent/Applicant thereafter filed an application seeking review of that ruling on the ground of an error apparent on the face of the record. HCCOMMA NO. E087 OF 2022 RULING Page 3 6. In a ruling dated 4th July 2025, delivered in respect of the Respondent/Applicant's application of 25th September 2024, I addressed the issues raised extensively and stated as follows: “13. I have perused the court record of 20th January 2023 and considered the audio recording availed to the Court by the applicant. In the recording the Court (Mabeya, J), is heard making the final orders as follows: “In the end, the application is found to be merited and prayer (b) is allowed as prayed. The Record of Appeal be filed and served within 60 days from the date hereof. The costs shall abide with the outcome of the appeal. 14. The recording corroborates the handwritten court proceedings, which confirm that thereafter counsel for HCCOMMA NO. E087 OF 2022 RULING Page 4 the respondent, Ms. Ochieng, did indeed make an oral application for leave to file an appeal. In response, Mr. Atonga, appearing for the applicant, indicated that he had no instructions at the time and left the matter to the discretion of the Court. The Court then proceeded to pronounce: “Leave to appeal is granted”. 15. The record confirms thereafter the orders that “Mention before Dr. Githiru to confirm compliance”. 16. Either way, whether the issue pertains to the application for leave to file the appeal out of time, which was granted with sixty (60) days allowed for filing the Record of Appeal, or to the application for leave to appeal the ruling of the HCCOMMA NO. E087 OF 2022 RULING Page 5 Court, which was likewise granted, the answers are found in both the court record and the audio recording provided. 17. Both sources confirm, unequivocally, that the Court granted the prayers sought. There is therefore no ambiguity or inconsistency in the record, and the assertion by the applicant that there exists an error apparent on the face of the record is without basis. 18. This finding is consistent with the reasoning adopted in the impugned ruling. It is therefore clear that the alleged error is neither patent nor self-evident, and consequently does not meet the legal threshold for review as stipulated under Order 45 HCCOMMA NO. E087 OF 2022 RULING Page 6 Rule 1 of the Civil Procedure Rules.” 7. It is evident that the issues raised herein are the same as those previously canvassed, save that they are now presented in the form of an application for striking out. Having already found no merit in the challenge to the appeal, I decline to make any further pronouncements on the matter. 8. This finding is fortified by Section 7 of the Civil Procedure Act, which codifies the doctrine of res judicata. The Section provides 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 parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit, and has been heard and finally decided by that court. 9. The doctrine exists to secure finality in litigation and to shield litigants from being subjected to repeated challenges on matters already conclusively settled. In the instant case, the question of whether the appeal was properly filed HCCOMMA NO. E087 OF 2022 RULING Page 7 within time and with leave of court was directly and substantially in issue before Justice A. Ong'injo, who determined the same in the ruling dated 21st March 2024, finding that leave had indeed been granted. That ruling was itself subjected to a review application, which I pronounced upon in my ruling of 4th July 2025. 10. The parties before me are the same, the subject matter is identical, and the issue has already been heard and finally determined by courts of competent jurisdiction. Consequently, the Respondent/Applicant cannot be allowed to reagitate the same issue merely by dressing it up as an application for striking out, as to do so would undermine the finality that Section 7 of the Civil Procedure Act is designed to protect. Disposition 11. Accordingly, the application dated 16th September 2025 is dismissed with costs. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17 TH DAY OF JULY 2026. HCCOMMA NO. E087 OF 2022 RULING Page 8 F. MUGAMBI JUDGE Delivered in presence of: Bullent for the applicant Ms Ngigi for the respondent Court Assistants: Lillian & Gloria HCCOMMA NO. E087 OF 2022 RULING Page 9