Ngoge t/a OP Ngoge & Associates v Onyango & 5 others; Attorney General & another (Interested Parties)
The bottom line
#You cannot keep re-litigating the same case after courts have finally decided it.
What this practically means
#The Supreme Court of Kenya struck out a third attempt to challenge a 2017 decision. The court had already dismissed the appeal and a previous review request. Filing another review was barred because the issues were finally settled. The court also said it had no power to hear a second review. This ruling reinforces that litigants must accept final court decisions and not file endless applications.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application dated 14th September 2020 is res judicata
- 2.Whether the court is functus officio
Key legal issues
#Whether the application for review is res judicata
The application is res judicata because the court had already finally determined the appeal and a review thereof.
The court noted that it had delivered a Judgment on 5th October 2017 dismissing the appeal for want of jurisdiction, and a Ruling on 23rd October 2018 dismissing the review of that Judgment. The present application, filed on 3rd November 2020, sought to review both decisions. The court held that the issues had been settled with finality, and therefore the principle of res judicata applied to bar the application.
Whether the court is functus officio
The court is functus officio and cannot entertain a review upon a review.
The court reasoned that after delivering the Judgment and the Ruling on review, it had exhausted its jurisdiction over the matter. There is no provision in the Supreme Court Act or Rules for a second review. The court cited its earlier decision in Menginya Salim Murgani v Kenya Revenue Authority to support the principle that a court becomes functus officio after final determination.
Legal principles established
#- Once a court has finally decided a case, any later application on the same issue is barred by res judicata.
- A court becomes functus officio after delivering a judgment and a ruling on review, meaning it cannot revisit the matter.
- There is no legal basis for a second review of the same judgment in the Supreme Court.
- A party who continues to file frivolous applications may be ordered to pay costs to the other side.
- The Supreme Court will strike out applications that are an abuse of process.
Court orders
#- 1.The Notice of Motion dated 14th September 2020 and filed on 3rd November 2020 is hereby struck out.
- 2.The applicant shall pay costs thereof to the 1st, 2nd and 6th respondents, the only parties that responded to the Motion.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- Jurisdiction invoked
- Not specified in the judgment
Relief refused
#Review of the Judgment of 5th October 2017 and Ruling of 23rd October 2018
The application is res judicata and the court is functus officio
Costs
The applicant shall pay costs thereof to the 1st, 2nd and 6th respondents, the only parties that responded to the Motion.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Key timeline
#Practical implications
#Finality of Supreme Court decisions
When advising clients on Supreme Court appeals, stress that after a judgment and a review ruling, no further applications for review are permissible. The court has no jurisdiction to entertain a second review. Any attempt will be struck out with costs. Use this ruling to manage client expectations and avoid wasting resources.
Respect final court orders
If your business is involved in litigation that reaches the Supreme Court, a final judgment ends the matter. Filing repeated applications to reopen the case will not succeed and will result in cost orders against you. Accept the outcome and focus on compliance or alternative dispute resolution outside court.
Don't keep filing the same case
If you lose a case in Kenya’s Supreme Court, you cannot keep going back to ask the court to change its mind. After one appeal and one review, the court is done. Any further attempt will be thrown out, and you may have to pay the other side’s legal costs. Move on.
Frequently asked questions
#What does res judicata mean in Kenya law?+
Res judicata means a matter that has already been finally decided by a court cannot be re-litigated. In Kenya, once a court delivers a final judgment, any later lawsuit or application on the same issue is barred. This ruling confirmed that principle applies to Supreme Court review applications.
Can I apply for a second review of a Supreme Court judgment in Kenya?+
No. The Supreme Court has ruled that after a judgment and one review ruling, the court becomes functus officio (no longer has power to hear the case). There is no law allowing a second review. Any such application will be struck out and you may be ordered to pay costs.
What happens if I file a frivolous application in Kenya's Supreme Court?+
The court can strike out the application and order you to pay costs to the other parties who responded. In this case, the applicant had to pay costs to the 1st, 2nd, and 6th respondents. This discourages abuse of the court process.
What is functus officio and how does it apply in Kenya?+
Functus officio means a court has completed its task and cannot revisit the case. In Kenya, after a court delivers a final judgment and a ruling on review, it becomes functus officio. This prevents endless litigation and gives finality to court decisions.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mbugua & 78 others v Ngaruiya & 8 others & 2 others (Environment and Land Case 161 of 2013) [2026] KEELC 1887 (KLR)[2026] KEELC 1887 (KLR)30 Mar 2026
Cite this brief
#Cite this brief
Caselaw, "Ngoge t/a OP Ngoge & Associates v Onyango & 5 others; Attorney General & another (Interested Parties)", Case Analysis (2021). Petition 18 of 2015. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/10/eng@2021-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.