Abdalla v Karisa

E001 of 2020 which appeal was dismissed by the Hight Court on 30/10/2024 for lack of jurisdiction with the court holding that the matter involved an employer and an employee and ought to have been filed at the Employment and Labour Relations Court. 5. The Defendant says that after the dismissal of the appeal the plaintiff subsequently proceeded to file a review application at the magistrate`s court but he thereafter withdrew it. That he has now filed the present suit challenging the judgment of the lower court delivered on 19/12/2019. 6. The Defendant through his counsel submits that the Plaintiff initially sought to pursue an appeal and later on changed tactic and sought a review and is now seeking review which is a blatant abuse of the court process. 7. The defendant submits that Order 45 of the Civil Procedure Rules makes it clear that a party cannot seek review of an order and an appeal at the same time as the two are not simultaneously available to an aggrieved party. 8. The defendant submits that section 80 of the Civil Procedure Act and Order 45 Rules 1 and 2 of the Civil Procedure Rules are clear that a party cannot apply for review and an appeal from the same decree or order. That the plaintiff herein exhausted the process of review and now wishes to go back to the same order he sought review and try his lack with an appeal which is an attempt to have a second bite on the cherry. That the application is an abuse of the court process and ought to be dismissed. Reliance was placed in the case of Fahim Yasin Twaha v Timamy Issa Abdalla & 2 others (2015) eKLR where the Supreme Court held that where a litigant has more than one option to pursue, he/she must settle on one of them. The court added that the decision on which course to pursue is taken in advance and once it is taken, the other option is no longer available or placed in abeyance to be reverted to at a later stage in the event the initial option does not succeed this means that when choosing, the litigant is expected to choose the best available option since he/she may not have any further recourse. 9. Also cited was the case of University of Eldoret & another v Sitienei & 3 others (2020) eKLR where the Supreme Court held that: “ We therefore note that when the applicants preferred to pursue review of the decision, as they were entitled to, that was the best option in their assessment even if it turned out to be unsuccessful. Allowing them to take the second option at this stage, as if they never exercised the first option in the first place, would not only contribute to protracting litigation but also defeat the whole essence of finality of the litigation process. This would mean that precious judicial time and resources would have been unnecessarily expended in not settling the dispute but rather satisfying the litigants’ options to cherry pick and engage in trial and error at the alter of judicial process without the attendant consequences. The delay which the applicants seek to be excused from is largely as a result of the applicants’ pursuit of the review process before the Court of Appeal and the resultant appeal before the Supreme Court. This delay, the 1st and 2nd respondents indicate is 560 days which the applicants do not contest. Whereas the applicants may have diligently been pursing their options whose success may have had an implication on the need for these proceedings, we are not inclined to accept such explanation based on what we have already stated. In conclusion, the parties have had their share of litigation and we would not want to extend it any further, more so on the limited issue of costs as a result of these applications. There must be an end to litigation however much the applicants are dissatisfied.” 10. The Defendant urged the court to allow the Preliminary Objection. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/889/eng@2026-01-29 2

page 2 of 6

Plaintifi`s submissions 11. The plaintiff opposed the P.O. and submitted through counsel that a preliminary objection in Kenyan law must raise a pure point of law which if upheld may dispose of the entire case without the need for a full trial. The defendant in this respect cited the case of Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 which established the principles that: a. “A preliminary Objection consist of a pure pint of law which has been pleaded or which arises by clear implication out of pleadings. b. It must be argued on the assumption that all facts pleaded by the other side ae correct. c. It cannot be raised if any fact must be ascertained or if what is sought is the exercise of judicial discretion. 12. They cited the case of Oraro v Mbaja (2005) eKLR where the court stated that a preliminary objection cannot be raised if any fact has to be ascertained or what is sought is the exercise of judicial discretion. 13. It was submitted that where evidence is required to prove or disapprove the point raised it is not a proper preliminary point, as held in Artar Singh Bhamra & another v Oriental Commercial Bank (2019) eKLR. Similarly, where facts are contested such as jurisdiction or limitation of time, a preliminary objection cannot stand, as stated in Hassan Ali Joho 8 another v Suleiman Said Shabbbhal & 2 others (2019) eKLR. 14. The Plaintiff submitted that he has to adduce evidence during the hearing to establish the facts pleaded that: a. That the Plaintiff herein filed an application to set aside ex parte judgment in Garsen CMCC 33 of 2019 on grounds of non-service but the same was dismissed. b. That the Plaintiff herein filed an appeal of the Ruling in Garsen HCCA E001 of 2020 but the Honourable Court downed its tools for want of jurisdiction. c. That the Plaintiff’s Motor Vehicle Registration Number KBH 834X Nissan matatu was attached and sold by auction in satisfaction of a decree for a running down matter. d. That the Plaintiff has established that he has already compensated the Defendant herein vide a discharge dated 20th September 2017 attached as exhibit “BAA3” hence the suit amounted to double compensation and unjust enrichment. e. The decree in Garsen CMCC 33 of 2019 is partly spent and the motor vehicle sold to an innocent party but the Defendant herein still pursuing for the balance amounting to over 2 million shillings. f. For reasons that the Plaintiff has not had a day in court to ventilate his case the only remedy is to challenge the double compensation and unjust enrichment through filing of fresh suit. 15. It was submitted that the Preliminary Objection herein is premature. 16. On the suit being res judicata, the plaintiff relied on the principles of res judicata set out in the case of Hamptons Hospital Limited v Chief Justice of Supreme Court of Kenya & 2 others Sika Kenya Limited & another (Interested Parties) (Petition E515 of 2022) KEHC 1173 KLR that a final decision has been made on merits by a court of competent jurisdiction; that the same parties are litigating under the same https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/889/eng@2026-01-29 3

page 3 of 6

title; that the core issues must be the same; that the purpose of the rule is to bring finality to litigation and that the rule does not apply where the judgment was given by a court that lacked jurisdiction. 17. It was submitted that the High Court on appeal downed its tools for want of jurisdiction and therefore the plaintiff has not been heard on merit. That evidence on the issues and facts raised by the plaintiff will be adduced during the hearing. Therefore, that the matter is not res judicata. The plaintiff urged the court to dismiss the Preliminary Objection. The plaintiff urged the court to dismiss the Preliminary Objection Analysis and determination 18. I have carefully perused and considered the grounds in support of the Preliminary Objection and the grounds in opposition thereto. The issues for determination are: (1) Whether the Preliminary Objection is sustainable, and if so (2) Whether the suit is res judicata. Whether the Preliminary Objection is sustainable 19. It is trite law that for a Preliminary Objection to be sustainable, it has to raise a pure point of law. This was settled in the case of Mukhisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [supra] where the Court stated that; “ 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, 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.” 20. The issue here is the jurisdiction of the court and a question of jurisdiction is obviously a point of law. For a court to sustain a Preliminary Objection on a question of jurisdiction, the same has to be ascertained from the pleadings and not from the evidence. The Plaintiff herein pleads in his plaint that the suit before the magistrate`s court was a nullity for want of jurisdiction to try the case as it fell within the jurisdiction of the Employment and Labour Relations Court. The Defendant on the other hand pleads in his defence that the trial court had the requisite jurisdiction in view of directions issued by the Chief Justice in Kenya Gazette Notice No.5476 of 2023 on Practice Directions relating to pending court claims regarding compensation for work related injuries prior to the Supreme Court decision in Law Society of Kenya v Attorney General & another Petition No.4 of 2019. 21. It is then clear that the facts in the case are contested and where facts are contested, the issue cannot be settled in a preliminary objection. In those circumstances the matter has to go for full hearing so that the parties can adduce the necessary evidence to enable the court determine the contested issues. The Preliminary Objection is therefore not sustainable on this ground. 22. On the issue of the matter being res judicata, the defendant argues that the matter has been determined by courts of competent jurisdiction. The Plaintiff contends otherwise. 23. Section 7 of the Civil Procedure Act Cap 21 Laws of Kenya defines the doctrine of Res Judicata in the following terms: “ 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/889/eng@2026-01-29 4

page 4 of 6

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.” 24. In re Estate of Riungu Nkuuri (Deceased) [2021] eKLR the court stated as follows: “ The test for determining the Application of the doctrine of res-judicata in any given case is spelt out under Section 7 of the Civil Procedure Act. In Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others [2017] eKLR, the Supreme Court while considering the said provision held that all the elements outlined thereunder must be satisfied conjunctively for the doctrine to be invoked. That is: 25. a. The suit or issue was directly and substantially in issue in the former suit. b. That former suit was between the same parties or parties under whom they or any of them claim. c. Those parties were litigating under the same title. d. The issue was heard and finally determined in the former suit. e. The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.” In the case of Attorney General & another ET vs (2012) eKLR it was held that; “ 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 form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi s NBK & 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”. 26. In essence therefore, the doctrine implies that for a matter to be res judicata, the matter in issue must be similar to those which were previously in dispute between the same parties and the same has been determined on merits by a court of competent jurisdiction. In the present case, the issue of jurisdiction was directly and substantially in issue in the former suit; the former suit was between the same parties in the present suit and were litigating under the same title; the issue was heard and finally determined by the trial magistrate. The only issue is whether the magistrate`s court was competent to try the matter. 27. The Plaintiff argues that the magistrate`s court was not seized of the matter for lack of jurisdiction. That the High Court declined to determine the appeal and instead downed its tools for lack of jurisdiction. He argues that the matter has not been determined by courts of competent jurisdiction. 28. Indeed, the High Court did not determine the issues that were before it on merit for want of jurisdiction. It cannot therefore be said that the issues were resolved by the High Court with finality when it did not determine the issues before it on merit. 29. However, the court had the competence to rule on whether or not it had jurisdiction over the matter. The question that now disturbs my mind is whether I can revisit the matter and issue the orders and declarations sought in the suit when the court (Githinji J.) has already ruled that this court (the High https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/889/eng@2026-01-29 5

page 5 of 6

Court) has no jurisdiction over the matter and that the court with the requisite jurisdiction is the Employment and Labour Relations Court. 30. In the well-known case of Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd [1989] KLR 1, the Court of Appeal expresses itself thus on jurisdiction of a court: “ Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction …. Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given." 31. The plaintiff has not appealed the ruling of Justice Githinji that this court has no jurisdiction over the Garsen CMCC No.33 of 2019 because it was a matter that involved an employer and an employee which is a matter that falls within the jurisdiction of the Employment and Labour Relations Court. That being the case, I do not think that I have the competence to revisit the matter. It would amount to presiding over an appeal on Justice Githinji’s ruling through the back door. As far as the issue of jurisdiction is concerned the issue is res judicate because the court has already made a determination. It cannot proceed to make declarations as requested by the plaintiff when the court has already held that it has no jurisdiction over the matter. 32. The upshot is therefore that the Preliminary Objection is upheld and the suit herein is dismissed with costs to the Defendant. RULING READ, DELIVERED AND SIGNED AT GARSEN THIS 29TH DAY OF JANUARY 2026. J. N. NJAGI JUDGE In the presence of: N/A for Plaintiff Miss Nyabuto for Defendant Parties – Absent Court Assistant -Rahma https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/889/eng@2026-01-29 6

page 6 of 6