Edwin Harold Dande v Capital Markets Authority & 2 others

amounts to a violation of the petitioner’s right to access to information pursuant to article 35 (1)(b) of the Constitution. b. A further declaration be and is hereby issued that the failure by the 1st respondent to grant the petitioner a chance to respond to the allegations in the Report, before presenting it to Parliament and the public, has unconstitutional purpose and effect of violating the petitioner’s right to fair administrative action pursuant to article 47 of the Constitution. c. An order of Mandamus be and is hereby issued compelling the 1st Respondent to forthwith release to the Petitioner a copy of information that informed the assertions made in the Report. d. In the alternative to order (c) above, if the Honourable Court establishes at the hearing of the instant Petition that the 2nd respondent made the assertions without any basis, an order do issue directing the 1st respondent to issue a public apology to the petitioner for uttering incorrect, untrue and misleading information which had the direct consequence of occasioning serious reputational injury on the petitioner. e. A consequential order to order (d) above, be and is hereby issued directing the 1st respondent to pay general damages to the Petitioner for the inexcusable reputational injury and impermissible violation of the petitioner’s rights to fair administrative action and access to information pursuant to articles 35(1)(b) and 47 of the Constitution. f. An order of costs and interest to the Petitioner. 5. The petitioner equally filed a supporting affidavit sworn by Edwin Harold Dande, the petitioner herein dated November 22, 2022 who averred that on July 22, 2022, he made an access to information demand to the 1st respondent which demand remains ignored to date. Further, that the information demanded mentions his name adversely and he continues to suffer gross reputational injury. 6. According to him, he only learnt about a report prepared and published by the 1st respondent in which he is adversely mentioned on or about July 20, 2021. The Report stated: “ …It is worth noting that the Authority undertakes fitness and probity checks on all directors and key personnel to ascertain their fitness to participate in the capital markets. As such, and due to the pending cases for the key principals of Cytonn Investments before the court and other professional bodies, the key principals of Cytonn Investments, ie, Edwin Dande, Patricia Wanjama and Elizabeth Nkukuu…” 7. He asserted that the 2nd respondent’s assertions that he has pending cases before court and other professional bodies, which consequently hampered his alleged interests in being a principal to CAML, as they rendered him unfit to participate in the Capital markets, were completely false and untrue, and have continued to occasion irreparable reputational damage to him. 8. He further averred that his right to access to information is now threatened with violation and is apprehensive that unless the Respondent is compelled to furnish him with a copy of information that formed the basis of the 2nd respondent’s assertions on the Report, his rights under article 35(1)(b) will be violated. 9. In opposition to the petition and notice of motion, the 1st and 2nd respondents filed a replying affidavit sworn by Wycliffe Shamiah, the 2nd respondent herein and the Chief Executive Officer of the Capital Markets Authority, which was dated March 28, 2023. He averred that the petitioner has not provided any evidence of the alleged demand of information to the 2nd respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19212/eng@2025-12-04 2

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10. He asserted that he is aware that the petitioner previously filed a Constitutional Petition being HCCR Pet No E414 of 2022 Cytonn Investment Management PLC vs Capital Markets Authority & others seeking similar prayers to the Petition herein where parties have filed submissions and was pending delivery of judgment on May 11, 2023. 11. He further averred that the two petitions reveal that paragraph 29, 30, 31, 33, 34, 38, 39, 40, 41, 42, 43 and 44 together with prayers (a) to (e) in petition E414 of 2022 are similar in substance to paragraphs 28, 29, 30, 32, 33, 36, 37, 38, 40 and 44 together with the reliefs sought in the instant petition are similar in substance and all emanates from a demand to be given access to an inquiry report made by the 2nd respondent. Moreover, that the two cases are essentially the same and the difference is that one is filed by the director and the other by the company itself which actions amount to an abuse of the court process thus the courts are at risk of arriving at different determinations on the same subject matter. 12. He contended that the petitioner’s Company also filed another suit against the respondents herein being HCC No E249 of 2021 Cytonn Investment Management PLC vs Wycliffe M Shamiah & Capital Markets Authority seeking damages for reputation injury arising from the press releases of April 20, 2020, June 17, 2021 and a Report to the Departmental Committee on Finance and National Planning on Question raised by Hon Aden Dwale. 13. He asserted that other than this petition, the Petitioner has also filed another being Pet No E009 of 2023; Cytonn Investment Management PLC vs Capital Markets Authority and others seeking similar orders for access to information another instance of abuse of the due process of court and it is clear that the petitioner is engaging in forum shopping and clogging the court with many cases that can be resolved in one suit. 14. He contended that the petitioner has always been aware of the inquiry that was done by CMA and was even afforded an opportunity to explain himself vide a notice to show cause dated April 25, 2017to which he responded to vide letter dated August 17, 2017. 15. He further contended that the petitioner had an opportunity to seek for additional information about the CMA inquiry considering that he responded to the issues raised therein and even invited the Authority to visit and verify the existence of some of its projects. In addition, he averred that the Access to Information Act, 2016 under sections 6(1) and sections 11(3)(h), 13B, 13(1) and 13(2) of the Capital Markets Act prohibit the Authority and its officers from disclosing information obtained in its enquiry process to persons unless ordered by the court of law. 16. He averred that there is an elaborate dispute resolution mechanism under the Capital Markets Act including hearing by the Board and an appeal mechanism at the Capital Markets Tribunal which the Petitioner has ignored and should have been an appropriate forum to seek redress in this matter. 17. The 1st and 2nd respondents further filed a supplementary affidavit sworn by Wycliffe M Shamiah dated March 14, 2024 to which he averred that Constitutional Petition No E414 of 2022; Cytonn Investments Management PLC vs Capital Markets Authority & 2 others was determined and a judgment delivered on May 12, 2023. He asserted that the orders being sought by the instant petition are the same orders as the High Court granted in the referred to judgment. 18. In summary, the court granted the following orders to the Petitioner: a. A declaration that the refusal by the 1st respondent (Capital Markets Authority) of the inquiry report alluded to by the 2nd respondent in his interview with the interested party amounted to a violation of the petitioner’s right to access to information pursuant to article 35(1)(b) of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19212/eng@2025-12-04 3

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b. An order of Mandamus to issue compelling the 1st respondent to forthwith release the petitioner a copy of the inquiry report alluded to by the 2nd respondent in his interview with the interested party. c. The petitioner is awarded half of the costs of the Petition. 19. He asserted that pursuant to the judgment, the 1st respondent complied and shared the Inquiry Report and all information pertaining to the inquiry conducted, with the petitioner’s counsel on record vide letter dated September 29, 2023. 20. He further asserted that he is advised by his Counsel that the High Court having unequivocally pronounced itself on the issue of inquiry report and dismissed some prayers like in the instant petition, and the respondent having complied, the Petition herein not only lacks merit, is also overtaken by events and an abuse of the court process. 21. The petitioner filed a supplementary affidavit sworn by Edwin H Dande dated September 2, 2024, in response to the 1st and 2nd respondent’s replying affidavit. He averred that he sent a demand letter dated August 30, 2022 to the Capital Markets Authority demanding for a copy of information on the allegations made by Wycliffe Shamiah, the CEO of Capital Markets Authority against himself in the report to the Departmental Committee on Finance, Planning and trade. 22. He further averred that the cause of action in Nairobi HCCHRPET No E414 of 2022 Cytonn Investment Management PLC vs Capital Markets Authority & others is substantially different from the cause of action in the present petition since the Petition E414 of 2022, Cytonn Investment Management PLC (CIM) lodged a petition against Capital Markets Authority(CMA), Abubakar Hassan and Rina Hicks for comments made by Abubakar Hassan in his capacity as a representative of CMA in a YouTube Channel called Moneywise hosted by Rina Hicks and it is based on adverse comments that CIM made access to information demand seeking to see the inquiry made by CMA and the said information was denied. 23. Further, that judgment was delivered in favour of Cytonn Investment Management PLC on May 12, 2023 however, the 1st respondent is in contempt for failing to provide the inquiry report sought by CIM despite unequivocal court orders to do so. 24. He averred that Nairobi HCCC No E249 of 2021 Cytonn Investment Management PLC v Wycliffe Shamiah & Anor specifically addresses the utterance made by the 2nd respondent on April 20, 2020 in a verbal press release where the 2nd respondent averred that CIM was operating without the sanction of the law and the approval of the 1st respondent while in actual sense no approval was required by CIM from the 1st Respondent to operate its business as the Investment Manager of the Cytonn Group. 25. He asserted that Nairobi HCCRPET No E009 of 2023 Cytonn Investment Management PLC vs Capital Markets Authority and others addresses the press releases issued by CMA on the investigation into the licensing and status of Cytonn Investment Group through the press releases on 20th April and June 17, 2021 as well as the Report to the Departmental Committee on Finance, Planning and Trade. He further asserts that CIM instituted the petition for access to information on the findings of the investigation in its capacity as the investment manager of the Cytonn Group which was allegedly under investigations. 26. He stated that the present petition is premised on utterances of the 2nd respondent in his capacity as CEO of CMA in which the 2nd respondent adversely mentioned the Petitioner herein when he alleged that there were pending cases before the court and other professional bodies on the key personnel of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19212/eng@2025-12-04 4

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Cytonn Investments, the Petitioner included which rendered the petitioner unfit to participate in the capital markets. 27. He further stated that from the foregoing, the various cases filed by CMI all constitute distinct causes of action and cannot amount to forum shopping. According to him, he was never made aware of the existence of pending cases before professional bodies and courts that pertain to his fitness as a professional. 28. He asserted that the exemption of the provision of access to information under section 6(1) of the Access to Information Act does not preclude the 1st respondent from providing information sought by the petitioner as the information sought will not impede the due process of the law or undermine the 1st respondent’s ability to adequately consider the matter. Further, he is advised by Counsel that section 13(1) of the Capital Markets Act cannot override the provisions of article 35 of the Constitution of Kenya which reigns supreme over statutory provisions. According to him the exemptions pleaded by the respondents do not fall within the ambits of article 24 of the Constitution as concluded in HCCHRPET No E414 of 2022. 29. The 3rd respondent filed a notice of preliminary objection dated February 18, 2025 on the ground that no cause of action is demonstrated against the 3rd respondent, the Attorney General hence the Petition is bad in law that respect for misjoinder. 30. They further filed a notice of preliminary objection dated February 14, 2023 seeking the entire petition be struck out with costs on the ground that the Petition was filed in violation of the doctrine of exhaustion, as they did not exhaust the mechanisms provided for under section 9(1) and (6) as read together with section 14(1)(a) and (2) of the Access to information Act, 2016. 31. The petition was canvassed by way of written submissions where all parties filed and served their submissions. They equally highlighted their submissions on April 1, 2025. Petitioner’s Submissions 32. The petitioner filed written submissions to the preliminary objection dated January 11, 2024to which Counsel for the Petitioner averred that section 14(1) and (2) of the Access to Information Act, 2016 does not preclude an applicant from approaching the court as the sections are merely directory. Reliance was placed on the case of Okiya Omtata Okoiti v Cabinet Secretary Ministry of Lands and Physical Planning & another (Petition E381 of 2020) [2023] KEHC 19947 (KLR) (Constitutional and Human Rights) (14 July 2023) (Judgment) and the case of Night Rose Cosmetics (1972) Ltd v Nairobi County Government & 2 others [2018]. 33. They further averred that given the petitioner herein did not receive a decision from the 1st respondent within the timelines provided in statute, the petitioner cannot fall under the ambits of section 14(1) and (2) of the Access to Information Act, 2016 and that therefore has the right to approach this court through its Petition. 1st and 2nd Respondents’ Submissions 34. Counsel for the 2nd respondents filed submissions dated August 11, 2023 where they discussed one issue for determination namely; whether this court has jurisdiction to hear and determine the petition. 35. They asserted that from section 23(2), (3) and (5) of the Access to Information Act, 2016 this court can be considered an appellate one in so far as the right to access to information is alleged to have been infringed. They assert that the Act further states that any party who wishes to bypass a statutory dispute resolution mechanism has to demonstrate that were reasons for avoiding that route. They relied on the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19212/eng@2025-12-04 5

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case of Dock Workers Union of Kenya v Kenya Ports Authority; Portside Freight Terminals Limited & another (Interested Parties) [2021] eKLR and Geoffrey Muthiga Kabiru & 2 others vs Samuel Munga Henry & 1756 others [2015] eKLR. 36. They further stated that the petitioner has not established that this case falls within the exemptions since it does not involve matters of public interest and also does not involve virgin areas of law and the orders being sought by the Petitioner can be granted by the Commission. Thus, the appropriate forum for the Petitioner to file his case is at the Commission and thereafter follow the procedure laid out under Access to Information Act, 2016. 37. The 1st and 2nd respondents further filed submissions in opposition to the Petition dated February 10, 2025 and referred this court to be guided by the Supreme Court case of Dande & 3 others v Inspector General, National Police Service & 5 others (Petition 6 (E007), 4 (E005) & 8(E010) of 2022 (Consolidated) [2023] KESC 40 (KLR) (16 June 2023) (Judgment). Counsel for the 1st and 2nd respondents submitted that the petitioner has approached this court seeking information on cases before the court and other professional bodies and which he asserts to be non-existent yet is clearly a part of the same and the information touching on the cases clearly within their knowledge. 38. They further submitted that the order for damages and issuance of public apology by the Respondents on account of allegedly publishing false and misleading information and without affording him an opportunity to make clarification is subjudice because the petitioner filed this case well aware that he had sought similar orders in HCCC No E249 of2021: Cytonn Investment Management PLC vs Wycliffe M Shamiah & Capital Market Authority. 39. They equally submitted that the Petition before the court is a nonstarter for being premised on documents and proceedings before Parliament and from which the Respondents are accorded immunity in law. They further relied on section 10 of the Capital Markets Act which protects CMA officers from liability on acts done in good faith. 3rd Respondent’s Submissions 40. Counsel for the 3rd respondent filed written submissions dated May 23, 2023 in support of the notice of preliminary objection dated February 14, 2023 where they submitted that the present petition has been brought before this court without as much as an attempt to follow the procedure laid out in section 14(1) (a) and 14(2) of the Access to Information Act in violation of the doctrine of exhaustion and the doctrine of Constitutional avoidance. Reliance was placed on the case of Dhow House Limited v Kenya Power and Lighting Company (Constitutional Petition E058 of 2021) [2022] KEHC 11840 (KLR) (19 August 2022) and the case of Communication Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR. 41. They further filed submissions dated February 18, 2025where they submitted that the Petition does not establish a cause of action against the Attorney General. They assert that the Capital Markets Authority is established under section 5 of the Capital Markets Act as a body corporate with the power inter alia of suing and being sued. Therefore, according to rule 5(d)(i) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 the Attorney General should be struck out from the proceedings. Analysis and Determination 42. I have carefully considered the petition, the Grounds of opposition,the affidavits, the arguments by parties and the decisions relied on, the following core issue for determination is: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19212/eng@2025-12-04 6

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Whether the Petition is res judicata 43. The substantive law of Res Judicata is found on section 7 of the Civil Procedure Act cap 21 which provides that: “ 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.” 44. The Black’s Law Dictionary 10th Edition defines “res judicata” as “ An issue that has been definitely settled by judicial decision…the three essentials are (1) an earlier decision on the issue, (2) a final Judgment on the merits and (3) the involvement of same parties, or parties in privity with the original parties…” 45. A person may not commence more than one action in respect of the same or substantially similar cause of action and the Court must attempt to resolve multiple actions involving a party and determine all matters in dispute in an action so as to avoid multiplicity of actions. 46. The Court of Appeal in the case of Siri Ram Kaura vs MJE Morgan, CA 71/1960(1961) EA 462 stated as follows with regard to the doctrine of res judicata: “ The mere discovery of fresh evidence (as distinguished from the development of fresh circumstances) on matters which have been open for controversy in the earlier proceedings is no answer to a defence of res judicata… The law with regard to res judicata is that it is not the case, and it would be intolerable if it were the case, that a party who has been unsuccessful in litigation can be allowed to reopen that litigation merely by saying, that since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up the same relief which I asked for before, but being in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should be allowed to be the foundation of a new litigation, and I should be allowed to commence a new litigation merely upon the allegation of this additional fact. The only way in which that could possibly be admitted would be is the litigant were prepared to say, I will show that this is a fact which entirely changes, the aspect of the case, and I will show you further that it was not, and could not by reasonable diligence have ascertained by me before… The point is not whether the respondent was badly advised in bringing the first application prematurely; but whether he has since discovered a fact which entirely changes the aspect of the case and which could not have been discovered with reasonable diligence when he made the application. It is therefore not permissible for parties to evade the application of Res judicata by simply conjuring up parties or issues with a view to giving the case a different complexion from the one that was given in the former suit.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19212/eng@2025-12-04 7

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47. I am guided by the decision of the Supreme court in the case of Kenya Commercial Bank Limited v Muiri Coffee Estate Limited & another Motion No 42 of 2014 [2016] eKLR where the court opined as follows: “ The doctrine of Res Judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is the doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party conclusively. 58. Hence, whenever the question of res judicata is raised, a court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The Court should ascertain whether the parties are the same, or are litigating under the same title and whether the previous case was determined by a court of competent jurisdiction.” 48. In determining whether the doctrine of res judicata applies in constitutional litigation, the Supreme Court in the case of John Florence Maritime Services Limited & another v Cabinet Secretary Transport and Infrastructure & 3 others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment) stated that to find that the doctrine of res judicata does not apply to constitutional litigation, the doctrine may very well lose much of its legitimacy and validity. Such a holding may lead to parties, that whenever they need to circumscribe the doctrine of res judicata, they only need to invoke some constitutional provision or other. It further opined that although the doctrine of res judicata lends itself to promote the orderly administration of justice, it should not be the cost of real injustice. 49. There are four elements that must be proven before a court may arrive at the conclusion that a matter is res judicata. They are as follows: 50. a. There is a former judgment or order which is final; b. The judgment or order was on merit; c. The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and d. There must be between the first and second action identical parties, subject matter and cause of action. The first issue to resolve is whether between the first and second action there were identical parties, subject matter and cause of action. The petitioner in Nairobi HCCHRPET No E414 of 2022 Cytonn Investment Management PLC vs Capital Markets Authority & others is a Limited Liability Company registered under the provisions of the Companies Act, 2015 Laws of Kenya, which the petitioner in the instant case is the Chief Executive Officer. Notably, the 1st and 3rd Respondents are the same in both suits. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19212/eng@2025-12-04 8

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51. Courts have to be vigilant against the drafting of pleadings in such a manner as to obviate the res judicata principle. This court is guided by the observation in ET v Attorney General & another,(2012) eKLR which stated thus: “ The Courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the Court. The test is whether the plaintiff in the second suit is trying to bring before the Court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi v National Bank of Kenya Limited and others, (2001) EA 177 the Court held that, ‘parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.’ In that case the court quoted Kuloba J in the case of Njangu v. Wambugu and Another Nairobi HCCC No 2340 pf 1991 (unreported) where he stated ‘If parties were allowed to go on litigating forever over the same issue with the same opponent before Courts of competent jurisdiction merely because he gives his case some cosmetic face-lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…” 52. It is evident that the petitioners are common in accordance to explanation 6 of section 7 of the Civil Procedure Act which provides as follows: “ Explanation (6) Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such rights shall, for the purposes of this section, be deemed to claim under the persons so litigating.” 53. It is my observation that Cytonn Investment Management PLC who is the Petitioner in Petition E414 of 2022 has common interests with the CEO of the Company, one Edwin Harold Dayan, the Petitioner herein, and therefore explanation (6) of section 7 of the Civil Procedure Act applies. Both Petitioners have the same interests and claim the same rights. 54. On whether the issues were directly and substantially in issue in the two suits, after going through the issues in both Petitions, I confirm that the issues are identical. From the face of it, it appears that the issues in the present suit and in Nairobi HCCHRPET No E414 of 2022 Cytonn Investment Management PLC vs Capital Markets Authority & others are directly and substantially the same. 55. HI Ong’udi J in her determination in Nairobi HCCHRPET No E414 of 2022 Cytonn Investment Management PLC vs Capital Markets Authority & others stated as follows: “ 35. On the fiipside, the petitioner at prayers (d) and (e) is perceived to urge this court to issue orders with respect to the alleged reputational injury caused by the respondents. This is in addition to the constitutional violation issue. The prayers read as follows for context… 36. Guided by the principles set out above, these two prayers i.e prayers (d & e) are fundamentally and directly in issue in suit HCCC No. E248 of 2021. This Court as a result is barred from accepting an invitation to make a determination on an issue competently placed before another court with the requisite jurisdiction. Proceeding with such a suit would essentially be in breach of the doctrine of sub judice.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19212/eng@2025-12-04 9

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56. The court proceeded to make the following orders: “ (i) A determination that the refusal by the 1st respondent to furnish the petitioner with a copy of the inquiry report alluded to by the 2nd respondent in his interview with the interested party amounts to a violation of the petitioner’s right of access to information pursuant to Article 35(1)(b) of the Constitution. (ii) Prayer (b) is dismissed. (iii) An order of mandamus to issue compelling the 1st respondent to forthwith release to the petitioner a copy of the inquiry report alluded to by the 2nd respondent in his interview with the interested party. (iv) Prayer (d) is dismissed (v) Prayer (e) is dismissed (vi) The petitioner is awarded half (1/2) of the costs of the petition.” 57. From the foregoing, it is clear that a court of competent jurisdiction made an order that was on merit and was final on the issues that are before this court today. The High Court has already dealt with issues arising in the instant petition and instead of seeking review or appeal the Petitioner has approached this same court, in the guise of a constitutional claim, to relitigate and challenge a decision of facts and issues finally determined by a court of equal status. What is more bizarre is that this court in Nairobi HCCHRPET No E414 of 2022 Cytonn Investment Management PLC v Capital Markets Authority & others already made a determination in favour of the Petitioner. 58. I am in agreement with Kuloba J in the case of Njangu v Wambugu and another Nairobi HCCC No 2340 of 1991 (unreported) which held that: “ If parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case a cosmetic face lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata…” 59. A decision of the court, must be respected as fundamental to any civilized and just judicial system. Judicial determinations must be final, binding and conclusive. There is injustice if a party is required to litigate afresh matters which have already been determined by the court. A decision of the court unless set aside or quashed in a manner provided for by the law, must be accepted as incontrovertibly correct. These principles would be ‘substantially undermined’ if the court were to revisit them every time a party is dissatisfied. 60. I am further guided by the Court of Appeal observation in Greenfield Investment Limited v Baber Alibhai Manji, Civil Appeal No 1600 of 1997 which stated as follows: “ Where a given matter becomes the subject of litigation in, and of 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 matter which might have been brought forward as part of the subject in contest but was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. Res judicata applies also to every point which properly belonged to the subject of litigation and which the parties exercising https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19212/eng@2025-12-04 10

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due diligence, might have brought forward at the time. See Henderson v Henderson (1843) 3 Hare 100 at 115.” 61. This court notes that the cause of action in this matter is the same as the one in Nairobi HCCHRPET No E414 of 2022 Cytonn Investment Management PLC v Capital Markets Authority & others, same also is the relief that was sought in the two petitions which is whether the Respondents violated the petitioner’s constitutional rights of access to information pursuant to article 35(1)(b) of the Constitution and reputational injuries in violation to the Petitioner’s rights to fair administrative action and access to information pursuant to article 35(1)(b) & 47 of the Constitution of Kenya, 2010. It is of no materiality that in the subsequent petition, parties changed with the dropping of Cytonn Investment Management PLC as the petitioner, Abubakar Hassan as the 2nd respondent and Rina Hicks as the interested party and the introduction of Edwin Harold Dayan the CEO of Cytonn Investment Management PLC and Wycliffe Shamiah the 2nd respondent herein. The cause of action remains the same and so is the relief sought. 62. Lastly, it is worthy to note that filing several suits or applications before the same court or in different courts, seeking the same orders, is an abuse of the process of the court. The abuse involves instituting a multiplicity of actions on the same subject matter, against the same opponents, on the same issues, instituting different actions between the same parties simultaneously in different courts even though on different grounds. 63. Thus, in order to ensure jurisprudential consistency, this court is inclined in light of the foregoing analysis to dismiss the instant petition based on the doctrine of res judicata. 64. Each party shall bear its own costs. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4TH DAY OF DECEMBER 2025. BAHATI MWAMUYE MBS JUDGE In the presence of: Cou Ms. nsel for the Petitioner- Ms. Koile Counsel for the 1st and 2nd Respondents – Ms. Chepngeno Counsel for the 3rd Respondent - Mr. Thande Kuria h/b Mr. Kaumba Court Assistant – Ms. Lwambia https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19212/eng@2025-12-04 11

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