Nairobi City Water and Sewerage Company v Capture Solutions Limited
The bottom line
#Kenya's Court of Appeal dismissed Nairobi Water's fourth attempt to challenge an arbitral award, ruling that repeated applications on the same issues are barred and abusive.
What this practically means
#Executive summary
#Key legal issues
#What is the standard upon which the full Court may interfere with a single Judge's discretionary decision on a reference under Rule 57(1)(b) of the Court of Appeal Rules, 2022?
The full Court interferes only where it is demonstrated that the single Judge failed to exercise discretion judicially - by considering an irrelevant matter, failing to consider a relevant one, or acting on a misapprehension of fact or law - and not merely because it would have reached a different conclusion.
The Court restated the test from Kimathi and Makove. It accepted that Sichale, JA misapprehended the procedural history by treating the Rule 39(b) extension-of-time-to-apply-for-leave application as substantially identical to the earlier applications, which concerned extension of time to file a notice of appeal and a procedurally defective leave application. However, on the totality of the record, the misdirection did not avail the applicant because the earlier rulings had conclusively addressed the inordinate delay and were never challenged by reference or further appellate process.
Whether the applicant's motion for extension of time to apply for leave to appeal was barred by res judicata.
It was. Section 7 of the Civil Procedure Act bars not only matters directly and substantially in issue previously but also those which ought to have been raised, and extends to interlocutory and appellate proceedings; the motion sought to re-open matters determined or properly raisable in the earlier proceedings.
Following the Supreme Court's decision in John Florence Maritime Services, the Court affirmed the expanded application of res judicata as a principle of general application grounded in the public interest in finality of litigation and the efficient administration of justice. The applicant did not challenge the rulings of Ouko, JA and the full bench by reference or further appeal. The present application was therefore, in substance, an attempt to re-open matters either directly and substantially determined or which ought properly to have been raised earlier.
Whether successive applications founded on the same factual matrix constitute an abuse of the process of the Court.
They do. Abuse of process, rooted in the Court's inherent jurisdiction, includes litigation in instalments; the applicant's repeated attempts to secure appellate intervention through successive applications amounted to impermissible litigation in instalments.
Drawing on Muchanga Investments, the Court held that abuse of process includes the improper use of judicial proceedings to relitigate determined issues and to pursue successive applications in a manner that is oppressive, vexatious or designed to circumvent final judicial determinations. The applicant's attempts before Ouko, JA, the full bench and the single Judge were successive applications on the same factual matrix, undermining the finality of litigation. Such conduct constitutes an abuse of the process of the Court.
Whether the applicant was entitled to extension of time under Rule 4 of the Court of Appeal Rules to apply for leave to appeal.
Not determined on the merits; the Court found it unnecessary to consider the Rule 4 motion, the same having been fatally compromised by the applicant's attempt to relitigate matters already conclusively determined.
Having found the motion res judicata and an abuse of process, the Court declined to reach the extension-of-time criteria. The applicant's explanations - procedural missteps, COVID-19 disruptions to internal decision-making, its status as a public entity obliged to defend public funds under Articles 201 and 227, and the asserted arguability of the intended appeal - were therefore never evaluated. The disposition rested entirely on res judicata and abuse of process.
Legal principles established
#- Res judicata under section 7 of the Civil Procedure Act bars not only matters directly and substantially in issue in previous proceedings between the same parties, but also matters which ought to have been raised therein.
- Res judicata is not confined to substantive suits but extends to interlocutory and appellate proceedings where finality, identity of parties and issues, and competence of jurisdiction are satisfied.
- Abuse of the process of the Court encompasses litigation in instalments, where a party advances its case piecemeal through multiple proceedings after having had an opportunity to present its entire case.
- On a reference against a single Judge's discretionary decision, the full Court interferes only where the Judge failed to exercise discretion judicially - by taking into account an irrelevant consideration, failing to consider a relevant matter, or acting on a misapprehension of fact or law - and not merely because it would have reached a different conclusion.
Court orders
#- 1.The reference is dismissed.
- 2.The ruling of the learned single Judge (Sichale, JA) delivered on 4th November 2022 is upheld.
- 3.The applicant's motion for extension of time to apply for leave to appeal is dismissed with costs to the respondent.
- On appeal from
- Court of Appeal of Kenya (ruling of a single Judge, Sichale, JA)
- Jurisdiction invoked
- Rule 57(1)(b) of the Court of Appeal Rules, 2022 - reference to the full Court against a decision of a single Judge (the underlying motion also invoked Articles 159(d), 164(5), 201(d), 227 and 259 of the Constitution, sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rules 4, 39(b) and 47 of the Court of Appeal Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nairobi City Water and Sewerage Company v Capture Solutions Limited", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1522/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.