High Court 5126 of 2026

3. 3. The applicant’s suit is struck out in its entirety on grounds that it offends the provisions of Section 6 and 7 of the Civil procedure Act as the matter is res judicata and sub judice 4. Further, the applicant is granted leave to appeal, the prayer to stay the ruling is declined. By plaint dated 17th April 2024 the applicant sought for orders1. That adeclaration that the actual custody, control and care of the minor RJLD is granted to the Plaintiff with the Defendant having limited supervised visitation rights. 2. That this Honourable Court be pleased to make such further or other order as it may deem fit to grant 3. That the cost of this suit be borne in the cause. 4. At the 13th paragraph of the Plaint, the appellant disclosed that there had been previous litigation in courts in New York and Kenya. The matter in New York was initiated by the respondent, and her mother had initiated the case in Kenya. At paragraph 16, she stated that no suit was pending before her and the respondent. The Plaint was accompanied by an application under certificate of urgency in which she sought orders seeking custody of the minor and orders barring the Respondent from removing the child from Kenya. 5. In response the respondent lodged Notice of Motion in which he contended that on account of the suits filed in New York and in Kenya the matter was both sub judice and res judicata. 6. That application was canvassed via written submissions and in its ruling, the subject of this appeal, the trial court proceeded to strike out the suit for being sub judice and res judicata. 7. This appeal was canvassed via written submissions; the submissions of the appellant are dated 19th December 2025. She urges that the Court erred in dismissing the suit on a technicality; it is urged that the Court should have been guided by Article 159(2)(d) of the Constitution of Kenya. It is further submitted that the Court erred in finding that the matter was res judicata as the other matters in Court were between the respondent and the mother to the appellant. The parties were not the same and the issue then was the appointment of her mother as a guardian of the Child. 8. Further, it is stated that the Court erred in finding that the case before it was sub judice on account of the matters in New York in light of the express provision of Section 6 of the Civil Procedure Act. In addition, it is submitted that the Court failed to consider the best interests of the Child. 9. The Appellant relies on the following authorities; Willie v Muchuki & 2 Others; John Florence Maritime Services Limited & Another v Cabinet Secretary Transport & Infrastructure & 3 Others ( Petition 17 of 2015) [2021] KESC 39 KLR; MAK v RMAA & 4Others ( Petition 2 (E003) OF 2022) [2023] KESC 21 KLR, MM v NA [2015] Eklr, JO v AO [2016] KECA 55 (KLR), MAK v RMAA & 4Others ( Petition 2( E003 of 2022)[2023 10. The respondent opposes the application. His replying affidavit is sworn on 5th February 2025, He labels the application as, frivolous and an abuse of Court process and an attempt by the applicant to circumvent the judicial process. 11. It is submitted that the appellant is not based in Kenya. The respondent has been providing support to the minor. There have been multiple suits initiated by the mother of the applicant and the Courts have repeatedly found that the child should be taken back to the USA. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5126/eng@2026-04-24 2

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12. It is submitted that the opinions of the Children Attorney and the Children Officer are simply that, an opinion and that the decision of the Court delivered on 8th November 2024 stands. 13. The Applicant swore a further affidavit on 28th February 2025. She reiterates that the judge erred in finding that the matter was res judicata as whereas her mother sought guardianship in the current matter the issue is one of custody between the Appellant and the respondent. Her mother is not a party in the present matter. 14. She avers that the multiple applications are an endeavour to secure justice for the minor. The child is a citizen of Kenya and is deserving of the protection of the Court. She is now stable financially has a job that allows her to stay in Kenya and is the primary care giver for the minor. The Court should consider that the minor left the USA when he was one and a half years and has never gone back there. 15. It is submitted that the most recent decision of the New York Court has granted interim custody to the grandmother. 16. The respondent filed supplementary affidavit sworn on 12th March 2025, in which he provides ruling of the Court in New York dated 28th February 2025, requiring that the Appellant take the minor to New York at her own expense. 17. The Respondent further avers that the mother of the Applicant continues to litigate the matter and an appeal she has filed against the denial of stay by the Court in High Court Civil Appeal No. E063 of 2024 is scheduled for ruling by the Court of Appeal on 23rd May 2025. 18. The Respondent has in addition filed both grounds of opposition and preliminary objection to the Application. The Preliminary Objection is dated 5th February 2025 and is framed as hereunder1. The application is frivolous, vexatious and an outright abuse of the Court process. 2. The Application is res judicata on account of the rulings delivered by Justice H. Chemitei on 30th May 2024 and 20th January 2025 as well as the judgment of Hon. F. Terer dated 12th April 2024. 3. The Application is also sub judice on account of the pending application dated 30th January 2025 and filed before this same Court by MWM the grandmother of the child, in Milimani High Court Appeal No. E063 of 2024- MWM V CAD where she has sought similar orders. 19. The grounds of opposition are also dated 5th February 2025 and in addition to the issues raised in the preliminary objection argue that the Court is functus officio following the rulings delivers on 30th May 2024 and 30th January 2025 in HCFA E035 of 2024 and HCFA E063 of 2024 respectively; in both matters the Court declined to issue similar orders. 20. Pursuant to the Court’s directions the matter was canvassed via written submissions, with parties highlighting Submissions on 26th March 2025. Summary Of The Applicant’s Submissions 21. The Applicant frames the following as the issues for determination; 1. Whether the matter is res judicata? 2. Whether the matter is Sub judice? 3. Whether it is in the Best interests of the Child to remain in Kenya? https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5126/eng@2026-04-24 3

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22. On the 1st issue it is submitted that the matter is not res judicata as the well-established principles on res judicata have not been demonstrated. Reference is made to the decision in Judith Gathoni Willie v George Kihara Muchuki & 2 others [2004] eKLR ; Nairobi HCCC No. 1322 of 1993 Caltex Oil ( Kenya) -versus- Mohamed Yusuf & Others and Kanorero River Farm Ltd and 3 others v National Bank of Kenya Limited 23. On whether the matter is sub judice. The Applicant cites Section 6 of the Civil Procedure Act and the decisions in MAK V RMAA & 4 Others [ Petition 2 (EOO3) of 2022 [2023] KESC 21 (KLR) and M N v NA [ 2015] eKLR. Summary Of The Respondent’s Submissions 24. The Respondent on his part frames the following as the issues for determination; 1. Whether the Application is res Judicata? 2. Whether the application is sub judice? 25. It is submitted that the application is res judicata and reference is made to the decisions in Lotta v Tanaki [2003] EA 556; Uhuru Highway Development Limited v Central Bank of Kenya & 2 Others [1966] eKLR; Supreme Court decision in John Florence Maritime Services Limited & Another v Cabinet Secretary Transport & Infrastructure & 3 others ( Petition 17 of 2015) [2021] KESC 39 ( KLR); Henderson v Henderson ( 1843) 67 ER 313; ET v Attorney General & Another ( 2012) eKLR; Kennedy Mokua Ongiri v Jane Nyasende Mosioma & Florence Nyamoita Nyasende [2022] eKLR; Benjoh Amalgamated Limited v Halkana Molu & 4 Others [ 2009] KEHC 1695 (KLR); Benson Ngugi vs Francis Kabui Kinyanjui and Others [1989] KLR 146; Pravin Bowry v John Ward & Another [ 2015] eKLR. 26. On the 2nd issue, reference is made to Section 6 of the Civil procedure Act and the decision in Republic v Paul Kihara Kariuki, Attorney General & 2 Others Ex parte Law Society of Kenya [2020] eKLR. Analysis And Determination. 27. I have reminded myself of the duty of the appellate court which was succinctly stated in the case of Selle and Another -vs- Associated Motor Boat Company Ltd & Others [1968] 1. E.A 123 as follows:…………………….this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind [the fact] that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence. 28. I remind myself of the Constitutional imperative at Article 53 (2) that requires : (2)A child’s best interests are of paramount importance in every matter concerning the child. Similarly, the Children Act at section 8(1) provides as follows:In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (Own emphasis) 29. With the above in mind and having considered the pleadings herein, along with the submission filed, authorities cited and the applicable law, the following as the issues for determination: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5126/eng@2026-04-24 4

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1. Whether the appeal has merit? 2. Who should pay costs? 30. The appellant challenges the trial courts finding that the matter was both res judicata and sub judice. It is on this that the appeal turns. 31. Section 7 of the Civil Procedure Act defines Res judicata as followsNo 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. Explanation. — (1) The expression "former suit" means a suit which has been decided before the suit in question whether or not it was instituted before it. Explanation. — (2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court. Explanation. — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation. — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation. — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. 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 right shall, for the purposes of this section, be deemed to claim under the persons so litigating. 32. The Supreme Court in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] KESC 53 (KLR) held as follows: (317) The concept of res judicata operates to prevent causes of action, or issues from being relitigated once they have been determined on the merits. It encompasses limits upon both issues and claims, and the issues that may be raised in subsequent proceedings. In this case, the High Court relied on “issue estoppel”, to bar the 1st , 2nd and 3rd respondents’ claims. Issue estoppel prevents a party who previously litigated a claim (and lost), from taking a second bite at the cherry. This is a long-standing common law doctrine for bringing finality to the process of litigation; for avoiding multiplicities of proceedings; and for the protection of the integrity of the administration of justice, all in the cause of fairness in the settlement of disputes… There are conditions to the application of the doctrine of res judicata: i. the issue in the first suit must have been decided by a competent Court; ii. the matter in dispute in the former suit between the parties must be directly or substantially in dispute between the parties in the suit where the doctrine is pleaded as a bar; and iii the parties in the former suit should be the same parties, or parties under whom they or any of them claim, litigating under the same title Karia and Another v. The Attorney General and Others, [2005] 1 EA 83, 89. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5126/eng@2026-04-24 5

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33. In evaluating whether the present action is barred by res judicata, the Court reasoned as follows “ ….Consequently, Hon. Terer ordered the applicant herein to immediately return the child to USA or in the alternative hand over the child to the respondent to return the child to USA. After the said judgement, the applicant filed the present application dated 17/4/2024 seeking to be granted sole actual custody of the minor and the court does order the respondent not to remove the subject minor from the jurisdiction of this Country. It is my considered view that though the applicant herein was not an express party in E789 of 2022 she testified in support of her mother's application. Further, the subject matter in E789 of 2022 is the subject minor RJLD who is still the subject matter herein despite the fact that the applicant has instituted the suit herself. In addition, in view of the orders sought by the applicant and taking in to account the decision by Hon. Terer I find that if this court allows the said prayers it will amount to siting on appeal on a decision of a court of competent and concurrent jurisdiction. The same reasoning was held by Justice Chemitei when he held that; as a matter of fact to the extent that Justice Onyiego's ruling is still valid without prejudice to this appeal, I think this matter is res judicata. all the applicant is doing is splitting hairs and by extension trying all manner of delays to ensure that the minor does not leave the country. This court was informed that Justice J.N. Onyiego delivered a ruling on 24/9/2020 in Misc. 89 of 2019 and held that; that the mother is in America and the father is also there and there are two disputes pending before the New York court regarding custody and upkeep, it is this court's view that the issues of custody before the New York Court should be canvassed to conclusion. I this find that the matter in res-judicata in view of the judgement rendered by my brother Hon. Terer" ( Underlined for Emphasis) 34. The essence of the doctrine of res judicata aims at enuring that there is finality to litigation and a party is protected multiplicity of suits over the same issue, this was well articulated in the case of John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2024] KEHC 6648 (KLR) where the Court stated“ 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 a 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." 35. Evidenty the doctrine is intended to be applied as a shield and not a sword (see decision of the Supreme Court Independent Electoral & Boundaries Commission (IEBC) v. Jane Chepngerer and 2 Others (SC Civil Application No. 36 of 2014), in order for a Court to close the doors on a party on the basis of res judicata, the strict parameters must be met. The parties must be the same, the issues and cause of action identical and there must be a binding judgment. 36. Misc Application Number 89 of 2019 was instituted by MWM ( the mother to the appellant), it was initiated in response to the orders of the Court in New York of May 20, 2019. She sought to be appointed as a guardian ( See ground (i) of the application). At paragraph 7 of the affidavit sworn on https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5126/eng@2026-04-24 6

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27th May 2019, it was averred that this was a temporary arrangement until the appellant would have obtained financial security. This prayer was denied. 37. In the present suit the mother seeks to assert her parental rights. There has not been a determination on the mother’s parental rights. As stated this Court is obligated to consider the best interests of the child. In my view it is in the interests of the child that the issue of a parents parental rights and responsibilities be determined on merit. I therefore find that the matter is not res judicata. 38. The second issue is whether or not the current suit is sub judice. In Republic vs Paul Kihara Kariuki, Attorney General & 2 others Ex parte Law Society of Kenya (2020) eKLR, Justice Mativo discussed the concept sub judice as follows:…there exists the concept of sub judice which in Latin means “under Judgement.” It denotes that a matter is being considered by a court or judge. The concept of sub judice that where an issue is pending in a court of law for adjudication between the same parties, any other court is barred from trying that issue so long as the first suit goes on. In such a situation, order is passed by the subsequent court to stay the proceeding and such order can be made at any stage. 39. It is not in contest that the parties herein have matters pending before the Court in New York. The Supreme Court of Kenya in Kenya National Commission on Human Rights vs Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) (Advisory Opinion Reference 1 of 2017) [2020] KESC 54 (KLR), stated as follows: “ [67.] … A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.” 40. The matter before the Court in New York touches on the custody of the minor. As stated above there are already orders by that Court requiring the return of the minor to New York. 41. Section 6 of the Civil Procedure Act statesNo court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed. Explanation.—The pendency of a suit in a foreign court shall not preclude a court from trying a suit in which the same matters or any of them are in issue in such suit in such foreign court. 42. The application of the sub judice doctrine in Kenya differs based on the forum of the pending matter. Matters active in local courts compel an absolute stay, whereas for matters pending in foreign jurisdictions, the Court exercises judicial discretion regarding a stay of proceedings. The Court may elect to proceed with the matter before it notwithstanding that it is lis alibi pendens. In exercising its discretion, the Court is guided by the need to prevent contradictory judgments, duplicative litigation, and abuse of process. Key considerations include prioritizing the earliest filed matter, the convenience and cost to the parties, and the unique circumstances of the case. 43. It is acknowledged that the New York proceedings were initiated first and that court has already issued orders. Given that the matter is actively litigated there, and recognizing that consistency and clarity https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5126/eng@2026-04-24 7

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are paramount in child-related matters, it is in the best interests of the child to apply the doctrine of Forum non conveniens and allow the New York process to conclude before this Court makes further orders, if at all necessary. 44. 49. Accordingly, the appeal succeeds partially and these are the consequential ordersa. The finding by the trial Court that the matter is res judicata is set aside b. The finding that the matter is sub judice is upheld and proceedings herein shall be stayed pending the determination of Docket V04xxx-xx TMK vs CAD and Docket V-04xxx-xx CAD v TMK at the Court in New York c. The file is returned to the Trial Court for directions on when the parties will appear before the Court to confirm the progress of the matters in the Court at New Yorkand to take further directions. Each party to bear their own costs It is so ordered SIGNED, DATED AND DELIVERED VIRTUALLY IN NAIROBI ON 24th DAY OF APRIL , 2026. P.M NYAUNDI HIGH COURT JUDGE In the presence of; Fardosa Court Assistant Mwalugho and Ms. Mbugua for Appellant Anduwo for Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5126/eng@2026-04-24 8

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