Orachi & another v Oridi

3. He contended that the subject matter had previously been litigated in ELC NO 82 of 2020, culminating in a judgment delivered on 6th September 2023. 4. The Respondent further avers that, being dissatisfied with the said judgment, the Appellants lodged ELC Appeal NO E001 of 2023, which appeal was dismissed by a ruling delivered on 25 th July 2024. 5. According to the Respondent, the institution of the present appeal amounts to re-litigation of matters already determined and is therefore barred by the doctrine of res judicata. 6. The Respondent also invokes the doctrine of functus officio, maintaining that the litigation has reached its logical conclusion and that the present appeal constitutes an abuse of the court process through forum shopping. 7. In support of the Preliminary Objection, the Respondent annexed an order dated 11 th September 2023 issued in ELC NO 82 of 2020, and another order dated 13th August 2024 issued in ELC Appeal NO E001 of 2023, to demonstrate that the issues raised in the present appeal had already been determined. BUSIA ELC LA NO. E007 OF 2026 – RULING Page 2 of 9

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ANALYSIS AND DETERMINATION 8. I have considered the Notice of Preliminary Objection dated 7 th July 2026 and the rival positions by the parties, and the court is of the view that the following issues arise for determination: a) Whether the Notice of Preliminary Objection raises pure points of law for determination. b) Whether the present appeal, challenging the ruling delivered on 26th March 2026 in ELC No. 82 of 2020, is barred by the doctrines of res judicata and functus officio. c) Whether the present appeal amounts to an abuse of the court process and, if so, whether it should be struck out with costs. On whether the Notice of Preliminary Objection raises pure points of law for determination. 9. The law governing preliminary objections is now well settled. A preliminary objection must be founded on a pure point of law which, if successfully argued, is capable of disposing of the matter without the court having to ascertain contested facts or exercise judicial discretion. BUSIA ELC LA NO. E007 OF 2026 – RULING Page 3 of 9

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10. In the case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 the court provided that: “So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration.” 11. The Respondent’s objection is premised on the doctrines of res judicata and functus officio, contending that the present appeal seeks to re-litigate matters already determined in ELC No. 82 of 2020 and ELC Appeal No. E001 of 2023. The Respondent has annexed an order dated 11th September 2023 in ELC No. 82 of 2020 and another dated 13th August 2024 in ELC Appeal No. E001 of 2023 in support of that contention. BUSIA ELC LA NO. E007 OF 2026 – RULING Page 4 of 9

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12. However, I have perused the Memorandum of Appeal dated 26th March 2026. It is evident that the present appeal does not challenge the judgment delivered on 6 th September 2023 in ELC No. 82 of 2020, nor does it seek to reopen the issues determined in ELC Appeal NO. E001 of 2023. Rather, it challenges the subsequent ruling delivered on 26 th March 2026 in ELC NO 82 of 2020, by which the trial court cited the Appellants for contempt of court. Consequently, the appeal concerns the legality and propriety of the contempt ruling and not the merits of the original judgment. 13. In those circumstances, determining whether the appeal is barred by the doctrines of res judicata or functus officio would require the Court to interrogate the previous proceedings and compare them with the impugned ruling and the grounds of appeal. Such an inquiry extends beyond a pure point of law and calls for an examination of the record. Accordingly, I find that the Notice of Preliminary Objection does not meet the threshold set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 and is therefore not a proper preliminary objection. BUSIA ELC LA NO. E007 OF 2026 – RULING Page 5 of 9

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On whether the present appeal, challenging the ruling delivered on 26th March 2026 in ELC No. 82 of 2020, is barred by the doctrines of res judicata and functus officio. 14. Section 7 of the Civil Procedure Act bars a court from trying a matter that has been directly and substantially in issue in a former suit between the same parties and which has been heard and finally determined by a court of competent jurisdiction. Similarly, the doctrine of functus officio precludes a court from revisiting a matter once it has rendered its final decision. 15. In the present case, the Respondent contends that the appeal is barred because the dispute was conclusively determined in ELC NO 82 of 2020 and that ELC Appeal NO E001 of 2023 challenging that judgment was dismissed. However, as already observed, the Memorandum of Appeal dated 26 th March 2026 reveals that the Appellants are not appealing against the judgment delivered on 6th September 2023, but against a subsequent ruling delivered on 26 th March 2026, which found them in contempt of court. BUSIA ELC LA NO. E007 OF 2026 – RULING Page 6 of 9

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16. A contempt ruling constitutes a separate and distinct decision capable of being challenged on appeal. Consequently, the present appeal cannot, on its face, be said to be an attempt to reopen the merits of the judgment in ELC NO 82 of 2020 or the issues determined in ELC Appeal NO E001 of 2023. The doctrines of res judicata and functus officio therefore do not apply merely because the contempt proceedings arose from the same suit. What is under challenge is the legality and propriety of the subsequent contempt ruling, which presents a distinct cause for appellate consideration. 17. Accordingly, I find that the present appeal is not barred by the doctrines of res judicata or functus officio, and the Respondent’s objection on that ground is without merit. On whether the present appeal amounts to an abuse of the court process and, if so, whether it should be struck out with costs. 18. An abuse of the court process arises where the court’s process is used for an improper purpose, including instituting multiple proceedings over the same subject matter to obtain a collateral advantage. The Respondent contends that the present appeal BUSIA ELC LA NO. E007 OF 2026 – RULING Page 7 of 9

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amounts to such an abuse because the dispute has previously been determined. 19. In the case of Ochieng & 19 others v Owaga & 6 others [2022] KEHC 16960 (KLR), the Court provided that: “The Civil Procedure Rules similarly do not define what constitutes an abuse of the court process. However, by judicial invention, the term was defined in Satya Bhama Gandhi v Director of Public Prosecutions & 3 others [2018] eKLR where the court stated that: “The situation that may give rise to an abuse of court process are indeed in exhaustive, it involves situations where the process of court has not been or resorted to fairly, properly, honestly to the detriment of the other party”. 20. However, as already found, the present appeal is directed against the ruling delivered on 26th March 2026 citing the Appellants for contempt of court and not against the judgment in ELC NO 82 of 2020 or the decision in ELC Appeal NO E001 of 2023. The Appellants are exercising their statutory right of appeal against a distinct and appealable decision. BUSIA ELC LA NO. E007 OF 2026 – RULING Page 8 of 9

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There is nothing on the face of the Memorandum of Appeal to demonstrate that the appeal has been instituted for an improper purpose or that it is a disguised attempt to reopen the substantive dispute. 21. Accordingly, I find that the present appeal does not amount to an abuse of the court process. The Respondent’s prayer to strike out the appeal on that ground is therefore unmerited. 22. Accordingly, the Notice of Preliminary Objection dated 7 th July 2026 is devoid of merit and is hereby dismissed with costs to the Appellants. Ruling dated, signed and delivered in open Court on this 17 th day of September 2026. C. MUGAMBI JUDGE 17TH SEPTEMBER 2026 BUSIA ELC LA NO. E007 OF 2026 – RULING Page 9 of 9

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