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for being res judicata. The 1st defendant herein was a third party and Housing Finance Corporation was the Plainti who had purchased L.R. Nos. Mombasa / Block XXI/ 580, Mombasa Block xx1/581 and Mombasa / Block XXI/ 582 which were a subdivision of Mombasa/ block XX1/577 from the 1st defendant herein. 3. That based on the foregoing the dispute as to the procedure of issuing, granting and registration of all that property formally registered as Mombasa/ Municipality BlockXX1/577 and the resultant subdivisions i.e. Mombasa / Block XXI/ 580, Mombasa Block XXI/581 and Mombasa /Block XXI/ 582, Mombasa / Block XXI/ 583 and Mombasa / Block XXI/ 584 was heard and determined with nality and all the appellate remedies available to the aggrieved parties exhausted. 4. This court has considered the preliminary objection and the submissions therein. Res judicata is a jurisdictional doctrine which is underpinned by section 7 of the Civil Procedure Act which provides thus; 7. 5. No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and nally decided by such court.” The Court of Appeal in John Florence Maritime Services Limited & ano v Cabinet Secretary for Transport and Infrastructure & 3 others (2015) e KLR cited with approval the following holding in Henderson v Henderson (1843) 67 ER 313 in relation to the tenor and import of the doctrine of resjudicata: “ ……where a given matter becomes the subject of litigation in any adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward, as part of the subject in contest, but which was not brought, only because they have from negligence, inadvertence or even accident, omitted part of their case. The plea of res judicata applies, except in special cases not only to points upon which the court was actually required by parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties exercising reasonable diligence might have brought forward at the time…..” 6. The Court of Appeal summarized the rationale behind the doctrine of res judicata in the following words; “ The rationale behind res judicata is based on the public interest that there should be an end to litigation over the same matter. Res judicata ensures the economic use of the court’s limited resources and timely termination of cases. It promotes stability of judgments by reducing the possibility of inconsistence in judgments of concurrent courts. It promotes condence in the courts and predictability which is one of the essential ingredients in maintaining respect for justice and the rule of law.” 7. With regard to the doctrine of jurisdiction, it cannot be gainsaid that jurisdiction is what gives courts and other adjudicatory bodies the mandate to determine disputes presented before them. Without jurisdiction, they labour in vain. The Supreme Court of Kenya underscored the centrality of https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20068/eng@2023-09-28 2

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jurisdiction in dispute resolution in the case of Samuel Kamau Macharia v Kenya Kenya Bank Ltd (2012) eKLR in the following words: “ A court’s jurisdiction ows from either the Constitution or legislation or both. Thus, a court can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 8. Prior to the above pronouncement by the Supreme Court of Kenya, the Court of Appeal stated the following on jurisdiction in Owners of Motor Vessel Lillian “S” v Caltex Oil (Kenya) Limited; “ Jurisdiction is everything. Without it, a court has no power to take one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending the evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 9. The plainti avers that dispute in ELC 282 of 2013 was instituted by Housing Finance Company Ltd vs Kenya Broadcasting Corporation and Kesko Agro Products as third Party and the issue revolved around the sale and purchase of Mombasa Block XXl/580, 581 and 582. In the said proceedings the 1st defendant denied any correlation between the mentioned suit properties and the said Mombasa Block XXI/577. Further the dispute therein challenged the titles held by Housing Finance. The present suit touches on Mombasa Block XXI/577 and the process of obtaining it was never impugned. The Plainti in this suit challenges the validity of the said title. This suit is Ethics and Anti-Corruption Commission vs Kensko Agro Products and others. The court is yet to pronounce itself with regard to the referenced title. The suit does not therefore oend the provisions of section 7 of the Act. 10. This court has to ascertain facts raised above by both counsel as it is their word against each other. I nd that where there are disputed facts to the existence of certain facts then the court must call for evidence to prove the same. I nd that this preliminary objection is not merited and it is dismissed with costs. 11. It is so ordered. DELIVERED, DATED AND SIGNED AT MOMBASA THIS 28TH DAY OF SEPTEMBER 2023. N.A. MATHEKA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20068/eng@2023-09-28 3

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