Amendi v Ombuge & 2 others (Environment and Land Appeal E008 of 2023) [2026] KEELC 3244 (KLR)

Section 7 of the Civil Procedure Act embodies the doctrine, whose elements are identity of issues, parties, subject matter and cause of action, a final judgment, a judgment on merit, and a competent court. Proof requires evidence of the pleadings and decision in the former suit, attached to a notice of motion with a supporting affidavit. A preliminary objection only raises a pure point of law on undisputed facts; here the record did not disclose where the former suit was filed, its parties, issues or decision, so the plea could not succeed on the objection.

The impugned ruling addressed only the preliminary objection and was silent on the injunction application. The first appellate court, empowered by section 78(2) of the Civil Procedure Act to exercise the same powers as the original court, proceeded itself to determine whether the injunction application was merited under Order 40 Rule 1 of the Civil Procedure Rules and the Giella v Cassman Brown principles.

The grievance was the alleged opening of a non-existent access road before payment of a balance of Kshs. 50,000/=. There was no claim against the title, and the allegation that no access road existed was not demonstrated by a map or mutation form. Since upon survey no parcel remains inaccessible, judicial notice supported the conclusion that the balance of convenience tilts against granting an injunction.

The appellant filed witness statements and a list of documents but no defence opposing the suit or replying affidavit exhibiting evidence of the previous suit. Because witness statements and documents accompany a defence, those filed without one lacked legal foundation, reinforcing the conclusion that the res judicata plea lacked evidential support.