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Small ClaimsStruck OutNot stated in the judgment (references SCCCOM E747/2025 as the former suit)· [2026] SCC 83 (KLR)

Mghendi v Ichami (Commercial Case E1194 of 2025) [2026] SCC 83 (KLR)

Small Claims Court
16 April 2026
TMTheresa N. Mwangeka
914 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan Small Claims Court struck out a Kshs 722,000 borehole claim because the same dispute had already been decided in an earlier case.

What this practically means

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Executive summary

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The Respondent/Claimant filed a claim in the Small Claims Court at Mombasa seeking, among other reliefs, production of borehole drilling permits and company registration documents, certified documents from an engaged geologist, reimbursement of Kshs 722,000/= incurred in a failed borehole project, additional compensation for damage to image and reputation allegedly caused by fraudulent conduct, release of the drilling machine, plus costs and interest. The Applicant raised a preliminary objection dated 20th February 2026 contending that the court lacked jurisdiction because the claim was res judicata, the matters having been directly and substantially in issue in SCCCOM E747/2025, which had been heard and fully determined by a court of competent jurisdiction. The Claimant opposed the objection; the Applicant filed no submissions. Relying on the Supreme Court's definition of res judicata in Kenya Commercial Bank Ltd v Muiri Coffee Estate Ltd and the applicable test, the court examined the pleadings and judgment in SCCCOM E747/2025, even though the Applicant had not annexed them. It found the parties were the same: the present Claimant had been respondent in the earlier suit and had enjoined the present Respondent as a third party, and both participated in the earlier hearing. The earlier suit concerned Kshs 526,000/= advanced for a borehole drilling that did not yield, in which liability was admitted. The court held that the facts to be litigated in support of the present prayers were substantially the same, and that matters which might and ought to have been raised in the earlier suit are deemed directly and substantially in issue. Upholding the preliminary objection under section 13(2) of the Small Claims Court Act, the court struck out the claim with no orders as to costs.

Key legal issues

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01

Whether the instant claim is res judicata

Holding

Yes; the parties and issues are the same as in SCCCOM E747/2025, which was heard and determined by a competent court

Reasoning

The court compared the pleadings and judgment in SCCCOM E747/2025 with the present claim. The same parties participated in the earlier suit (the present Claimant was respondent and enjoined the present Respondent as third party). The subject of the earlier claim was Kshs 526,000/= advanced for a failed borehole, and the facts needed to litigate the present prayers are substantially the same. Matters which ought to have been raised in the former suit are deemed directly and substantially in issue.

p. 2
02

Effect of failure by the applicant to attach pleadings/judgment of the former suit

Holding

The omission was not fatal; the court suo motu examined the record of SCCCOM E747/2025 and satisfied itself on res judicata

Reasoning

The applicant relied on SCCCOM E747/2025 without attaching its pleadings or judgment. Notwithstanding, the court itself went through the pleadings and judgment in the former suit, established identity of parties and participation by both parties in the earlier hearing, and proceeded to determine the objection on the merits of the res judicata question.

p. 2

Legal principles established

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  • A claim shall not be brought before the Small Claims Court if proceedings relating to that claim are pending in or have been heard and determined by any other Court
  • In assessing res judicata the court examines the decision, pleadings and record of the previous case and the instant case to ascertain whether the parties, issues and competent jurisdiction coincide
  • Any matter which might and ought to have been made a ground of defence or attack in the former suit is deemed directly and substantially in issue under the doctrine of res judicata

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.The claim is struck out under section 13(2) of the Small Claims Court Act
  3. 3.No orders as to costs
Jurisdiction invoked
Section 13(2) of the Small Claims Court Act

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, "Mghendi v Ichami (Commercial Case E1194 of 2025) [2026] SCC 83 (KLR)", Case Analysis (2026). Not stated in the judgment (references SCCCOM E747/2025 as the former suit). Source: https://new.kenyalaw.org/akn/ke/judgment/scc/2026/83/eng@2026-04-16

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