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MagistrateDismissedCivil Case No 1121 of 2018· [2026] KEMC 35 (KLR)

Mega Pack (K) Ltd v Nesfood Industries Ltd (Civil Case 1121 of 2018) [2026] KEMC 35 (KLR)

Magistrates' Court
15 January 2026
ALALOYCE-PETER-NDEGE
1,693 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court refused to reopen a case the defendant had already closed, ruling you cannot ask the same judge twice for the same adjournment.

What this practically means

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Executive summary

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This is a ruling of the Senior Principal Magistrate's Court at Nakuru on a Notice of Motion dated 08/05/2025 brought by the Defendant/Applicant under sections 1A, 3A and 63(e) of the Civil Procedure Act and Article 159 of the Constitution. The applicant sought to set aside the proceedings and orders of 14/03/2025, when the defence case was closed after the court declined an adjournment, and leave to file documents not on record. The applicant's director, Vilkesh Janendra Shah, deponed that his witness could not log into the virtual court because his payment card was not updated, causing his gadgets to fail, and that this was not deliberate. The Plaintiff/Respondent opposed, arguing the application was an adjournment sought 'through the back door' and res judicata, the same grounds having already been rejected by the court. The court framed two issues: whether the application was meritorious and whether it was res judicata. After reviewing the doctrine of res judicata under section 7 of the Civil Procedure Act and the authorities (Invesco Assurance, IEBC v Maina Kiai, and the Supreme Court's decision in John Florence Maritime Services), the court found that the identical adjournment ground had been determined with finality on 14/03/2025, after which the defendant voluntarily closed its case. The court held it was functus officio and barred by section 7 from determining the same issue again, and dismissed the application as lacking merit and an abuse of process. The defendant was nonetheless granted leave to file written submissions by 9.00am on 12/05/26.

Key legal issues

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Whether the application was res judicata

Holding

Yes. The issue of adjournment on the ground of the defendant's witness being unable to join the virtual platform due to a malfunctioning gadget was already determined with finality by the same court between the same parties.

Reasoning

The court reviewed the proceedings of 14/03/2025 where the same ground (gadget malfunction preventing the witness from logging in) was advanced for adjournment and rejected. The parties are the same, the court was competent, the issue was heard and finally decided, and the defendant voluntarily closed its case thereafter. Section 7 of the Civil Procedure Act therefore bars the court from determining the same issue again, and the court is functus officio.

p. 4

Legal principles established

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  • For res judicata to apply, the elements of section 7 of the Civil Procedure Act must be satisfied in the conjunctive
  • A court that has determined an interlocutory issue with finality between the same parties cannot reopen it; it is functus officio and barred by section 7 of the Civil Procedure Act

Court orders

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  1. 1.The Notice of Motion dated 08/05/2025 is dismissed for lack of merit and being an abuse of the court process
  2. 2.The defendant granted leave to file and serve its written submissions by or on 9.00am of 12/05/26

Authorities

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Legislation

  • Civil Procedure Act, Cap 21 Laws of Kenyasections 1A, 3A and 63(e)
  • Civil Procedure Act, Cap 21 Laws of Kenyasection 7
  • Constitution of KenyaArticle 159

Cases cited (3)

  • Invesco Assurance Company Limited & 2 Others v Auctioneers Licensing Board & Another; Kinyanjui Njuguna & Company & Another (Interested Parties)
    [2020] eKLR
  • The Independent Electoral and Boundaries Commission vs Maina Kiai & 5 others
    [2017] eKLR
  • John Florence Maritime Services Ltd & Another vs Cabinet Secretary for Transport and Infrastructure & 3 Others
    (2021) eKLR
Jurisdiction invoked
Sections 1A, 3A and 63(e) of the Civil Procedure Act and Article 159 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mega Pack (K) Ltd v Nesfood Industries Ltd (Civil Case 1121 of 2018) [2026] KEMC 35 (KLR)", Case Analysis (2026). Civil Case No 1121 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/35/eng@2026-01-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.