Peter Kariuki Mungara & Another v Margaret Konyu Ngari (Legal representative of the Estate of John Kariuki Gichangi)

2. The gist of the application is that this suit is res judicata, as there existed suit Embu HCCC/138/2012(O.S), that was transferred to this court and registered as Kerugoya ELC 122/2012, before being renamed as Kerugoya ELC 122/2013, and subsequently dismissed on 14 th May, 2018 for want of prosecution. That it was after the said dismissal that the plaintiffs filed the present suit. 3. The application is opposed by plaintiffs, through the 1 st plaintiff’s replying affidavit, sworn on 2 nd February, 2026, deposing inter alia that Angelica Mungara, with whom the 1st plaintiff had instituted the previous suit against John Kariuki Muchangi, deceased, died on the 30 th July 2016; that on 31st January 2018 this court directed that the said Angelica Wangeci Mungara be substituted in sixty days failure to which the suit stand dismissed; that the suit was subsequently dismissed on technicalities on 14 th April 2018 as per the earlier order of 31 st January 2018; that the dismissal order does not meet the threshold set out under Section 7 of the Civil Procedure Act, and this suit is therefore not res judicata. 4. The court issued directions on filing and exchanging submissions in respect of the application on 3 rd February 2026, in the presence of both parties’ counsel. However, when the matter came up for mention on 14 th April 2026, only the defendant /applicant attended, through counsel. KERUGOYA ELC NO. 24 OF 2019 (RULING) 2

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The counsel informed the court that they had filed and served their submissions dated 25 th February 2026. Counsel also informed plaintiffs/respondents had the not court filed or that the served any submissions. The court has carefully considered the submissions filed by the defendant/applicant. 5. In the submissions dated 25th February 2026, the learned counsel for the defendant/applicant inter alia rehearsed the background to this suit and outlined four (4) issues for determination. The counsel referred to the cases of Njue Ngai versus Ephantus Njiru Ngai & Another [2016] eKLR and Peter Ngome versus Plantex Company Limited [1983] eKLR among others, in support of their submissions. 6. The issues arising from the application for the court’s determination are as follows: a) Whether the suit by the plaintiffs has been caught up by the doctrine of res judicata. b) Who pays the costs? 7. The court has considered the grounds on the notice of motion, affidavit evidence, submissions by the learned counsel, superior court decisions cited thereof and come to the following conclusions: a) The defendant/applicant has contended that the plaintiffs’ suit is res judicata in view of the previous KERUGOYA ELC NO. 24 OF 2019 (RULING) 3

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litigation. Section 7 of the Civil Procedure Act Chapter 21 of Laws of Kenya that codifies the doctrine of res judicata provides as follows: “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 finally decided by such court.” {emphasis supplied} The plaintiffs’ rejoinder to the defendant’s application is that the suit, Kerugoya ELC 122 of 2013, was not heard and decided conclusively, and therefore this suit is not res judicata. b) In the of Njue Ngai versus Ephantus Njiru Ngai & another [2016] KECA 805 (KLR) where the Court of Appeal stated that: “21. … a dismissal for want of prosecution was as good as a final judgment in the KERUGOYA ELC NO. 24 OF 2019 (RULING) 4

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appeal unless a successful application for setting aside was filed. There can be no doubt therefore that Njue’s appeal to the High Court was decided by a competent court” A similar position was taken in other Court of Appeal decisions, including in the case of Co-operative Bank of Kenya Limited versus Cosmas Mrombo Moka & Legacy Auctioneering [2019] KECA 788 (KLR) and Uhuru Services Highway Development Limited versus Central Bank of Kenya & 2 others [1996] KECA 102 (KLR). c) The doctrine of res judicata is founded on public policy, which is aimed at achieving two objectives, namely, that there must be a finality to litigation, and that a party should not be vexed twice on account of the same litigation. This court is bound by the Appeal Court’s decision in Njue’s case (Supra) and the other cited decisions are directive on what this court should do when adjudicating applications with similar circumstances. d) There being no dispute that the parties and subject matter in this instant suit were the same in the previous matter, being Kerugoya ELC 122 of 2013, that was dismissed 14th May, 2018 for want of KERUGOYA ELC NO. 24 OF 2019 (RULING) 5

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prosecution, it follows that this suit contravenes the provisions of Section 7 of the Civil Procedure Act, and is therefore res judicata. e) What any party who felt aggrieved by the court decision of 14th May, 2018 dismissing the previous suit, was to either file an appeal before the Court of Appeal or seek for review/setting aside of the dismissal order, and reinstatement of the suit, and not to file a fresh suit. f) That as the above conclusion determines the instant application, the court does not find it necessary to delve into the other issues framed by the defendant in their submissions. Indeed, the application filed in court was solely on the issue of res judicata, and the determination of that single issue has disposed of this suit. g) Under Section 27 of the Civil Procedure Act, Chapter 21 of Laws of Kenya, cost follow the event unless where the court is convinced to order otherwise on good grounds. In this case, the defendant has succeeded in her application, and I see no reasons why she should not get costs. 8. Flowing from the above determinations, the court finds and orders as follows: KERUGOYA ELC NO. 24 OF 2019 (RULING) 6

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a) That the defendant’s application dated 30 th September 2025 has merit and is hereby allowed. b) Consequently, the plaintiffs’ suit is struck out for being res judicata. c) That the defendant is awarded costs of this application and the suit. It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 23RD DAY OF SEPTEMBER 2026 S. M. Kibunja ELC JUDGE In the presence of: Plaintiffs – Mr. Njiraini for Ngigi Gichoya. Defendant – M/S Njeri. Kinyua/Charles - Court Assistant KERUGOYA ELC NO. 24 OF 2019 (RULING) 7

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S. M. Kibunja EL C JUDGE KERUGOYA ELC NO. 24 OF 2019 (RULING) 8

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