Samuel Kangethe & 1 other v Sammy Njihia Wamae & 1 other

Court. Lastly, the Applicants submit that the decisions of the Chief Magistrate’s Court in MCELC E070 of 2023 cannot bind this Court. 3. In support of the objection, the Applicants filed submissions dated 13th February 2025, reiterating that the present application mirrors the one filed on 2nd October 2024, which was dismissed, and is therefore barred by res judicata. 4. The Respondents, Samuel Kangethe and Josephine Njeri, filed submissions dated 12th February 2025 opposing the Preliminary Objection. They contend that the objection lacks merit as the doctrine of res judicata is inapplicable where there are changed circumstances and new material facts. Reliance was placed on Ngugi v Ngugi [1986] KLR 101, which held that res judicata does not apply where material facts have changed. They also argue that the earlier applications were dismissed summarily without substantive determination, citing Kenyatta University v Kanyiri [2009] eKLR. 5. On locus standi, the Respondents maintain that they have sufficient interest and were duly granted audience through their application of 19th January 2025, citing George Gikubu Mwaura v Attorney General [2015] eKLR. 6. They deny that the applications are frivolous or vexatious, asserting that they seek relief based on new facts. Reliance was placed on Karanja v KPLC [2009] 2 EA 433. 7. On jurisdiction, both parties are in agreement that the decision of the Chief Magistrate’s Court at Kikuyu cannot bind this Court, but the Respondents argue that disclosure of the decision was proper in line with Kenya Airports Authority v Obwocha [2018] eKLR. 8. Finally, the Respondents submit that issues of whether an application is frivolous or vexatious require factual inquiry and cannot properly be raised by way of a preliminary objection. They rely on the celebrated case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 and Oraro v Mbaja [2005] 1 KLR 141. Analysis and determination 9. 10. Having considered the pleadings and submissions, the issues for determination are: a. Whether the application dated 10th February 2025 is barred by the doctrine of res judicata under Section 7 of the Civil Procedure Act. b. Whether the 1st and 2nd Respondents lack locus standi. c. Whether the Preliminary Objection meets the threshold in the Mukisa Biscuit Case. On the first issue of res judicata, Section 7 of the Civil Procedure Act provides: “ 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…and has been heard and finally decided by such court.” 11. The Supreme Court in Independent Electoral and Boundaries Commission v Maina Kiai & 5 others [2017] eKLR reiterated the elements that must be satisfied for res judicata to apply, namely: identity of parties, subject matter, and issues, and that the matter was heard and finally determined. 12. The doctrine bars re-litigation of matters already conclusively determined. However, as was held in Ngugi v Ngugi [1986] KLR 101, res judicata does not apply where there are changed circumstances or where new facts emerge that materially alter the issue for determination. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13513/eng@2025-09-25 2

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13. In the present case, the record shows that the applications dated 2nd October 2024 and 13th December 2024 were dismissed on 19th October 2024 and 16th January 2025 respectively. 14. The Respondents contend that the present application is grounded on new developments. Whether such alleged new facts indeed exist and whether they materially alter the case are factual questions that cannot be resolved on a preliminary point. On this basis, I find that the plea of res judicata has not been satisfactorily established. 15. On the issue of locus standi, the Applicants have argued that the 1st and 2nd Respondents are strangers to the suit. However, it is on record that they were duly granted audience through their application of 19th January 2025. In George Gikubu Mwaura v Attorney General [2015] eKLR, the Court held that locus standi is satisfied where a party demonstrates a sufficient interest in the matter. Whether such interest exists in the present case is again a matter of factual evaluation and not one that can be conclusively determined at this stage. 16. Accordingly, I find that the Respondents have demonstrated sufficient interest and cannot be shut out at this stage on grounds of lack of locus standi. 17. In the Mukisa Biscuit case (supra), Law, JA stated that a proper preliminary objection must raise a pure point of law, which if argued as a preliminary point may dispose of the suit. Similarly, in Oraro v Mbaja [2005] 1 KLR 141, Ojwang J. (as he then was) cautioned that a preliminary objection cannot be sustained where facts are contested or where evidence is required. 18. From the foregoing, it is clear that the issues of whether there are changed circumstances, or whether the application is frivolous or vexatious, require examination of evidence and are unsuitable for determination as preliminary objections. 19. For the foregoing reasons, I find that the Preliminary Objection dated 12thFebruary 2025 lacks merit. The same is hereby dismissed. Costs will be in the cause. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 25TH DAY OF SEPTEMBER 2025. PETER M. MULWA JUDGE In the presence of: Mr. Wangai for Applicants N/A for Respondents Court Assistant: Carlos https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13513/eng@2025-09-25 3

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