New Paleah Wholesalers Limited v Consolatat Adhiambo T/A Bamburi Hardware Limited

(b) That the learned magistrate failed to evaluate or consider the appellant's Grounds of Opposition which sufficiently demonstrated that the elements of res judicata were not satisfied. (c) That the learned magistrate erred in law in failing to appreciate that for res judicata to apply, the issues must have been directly and substantially in issue in a former suit and finally determined by a court of competent jurisdiction on its merit. (d) That the learned magistrate misdirected herself in law and fact in striking out the appellant’s suit prematurely without affording the her an opportunity to be heard on the substantive merits of the case. (e) That the Ruling of the learned magistrate occasioned a miscarriage of justice and denied the appellant the right to be heard as guaranteed under Article 50(1) of the Constitution of Kenya. 3. In the premises, the appellant prayed that the appeal be allowed with costs; that the Ruling delivered on 28th March 2025 be set aside in its entirety; and that Homa Bay CMCC E019 of 2024 be set down for hearing and determination on priority basis. The appellant also prayed for any further orders and directions that the Court may deem fit and just in the circumstance of the case. 4. The appeal was urged by way of written submissions, pursuant to the directions given herein on 13th October 2025. In its submissions dated 3rd October 2025, the appellant reiterated the factual basis of its appeal and proposed one issue for determination, namely, whether the trial court properly applied the doctrine of res judicata. The appellant relied on Section 7 of the Civil Procedure Act and set out the elements that must be demonstrated for the doctrine of res judicata to be invoked, namely: (a) That there is a former judgment or order which was final; (b) That the judgment or order was on merit; (c) That the judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and (d) That between the first and the second action the parties, subject matter and cause of action are identical. 5. The appellant also relied on the cases of Uhuru Highway Developers Limited v Central Bank of Kenya & others 1999 eKLR and Nicholas Njeru v Attorney General & 8 others 2013 eKLR to buttress his submission that, in the instant case, the previous matter was never heard and determined on its merits on account of jurisdiction and therefore, the third limb of Section 7 was not satisfied. In the premises, the appellant contended that the trial court erred by treating a matter that was struck out as a final determination contrary to established law. 6. The appellant also relied on John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others 2015 eKLR, in which the Court of Appeal held that for res judicata to apply, the earlier decision must have been conclusive on the issues raised and determined on merit; and submitted that the learned magistrate misapplied the doctrine, leading to an erroneous dismissal of the suit. 7. On the authority of D.T. Dobie & Company (Kenya) Ltd v Muchina 1982 KLR 1 the appellant submitted that its case disclosed triable issues fit for determination on the merits; and that by striking out the suit summarily, the learned magistrate effectively denied it an opportunity to be heard. In addition to Article 50(1) of the Constitution, the appellant relied on Philip Chemwolo & Another v https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6706/eng@2026-04-30 2

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Augustine Kubende 1982-88 KAR 103, and prayed that the appeal be allowed to serve the ends of justice. 8. The respondent opposed the appeal and to that end relied on her written submissions dated 19th February 2026. She defended the decision of the learned magistrate and submitted that the lower court correctly upheld the Preliminary Objection on the ground that the suit was barred by the doctrine of res judicata pursuant to Section 7 of the Civil Procedure Act. She likewise cited Uhuru Highway Development Ltd v Central Bank of Kenya and others; Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others, and Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 Others for an explication of the rationale for the doctrine. 9. In the respondent’s submission, dismissal for want of prosecution constitutes a final determination under Order 17 Rule 2 of the Civil Procedure Rules, because it terminates the suit; and unless set aside or reinstated, such dismissal remains a valid and binding decision. In this regard, the respondent relied on Pop-ln (Kenya) Ltd & 3 Others v Habib Bank AG Zurich and ET v Attorney General & Another, for the proposition that a dismissal order, unless vacated, is final and capable of triggering res judicata. She pointed out that the appellant did not seek reinstatement of Migori SCCCOMM El 96/2024 but instead opted to file a fresh suit before a different court in abuse of the process of the court. The appellant referred to the case of Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd in this regard. 10. The respondent also addressed the Court on the principles governing preliminary objections as set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd and Hassan Ali Joho & Another v Suleiman Said Shabal & 2 Others and pointed out that in this case, the appellant admitted the existence of Migori SCCCOMM El96 of 2024; and therefore no factual interrogation was required. She added that the appellant ought to have disclosed that prior suit before the lower court. In her submission, the omission by the appellant only goes to show that it intent on forum shopping. 11. Lastly, the respondent submitted that litigation must come to an end. In her view, allowing the appeal would encourage litigants to ignore dismissal orders and refile suits in different courts, thereby undermining certainty, judicial discipline, and public confidence in the administration of justice. She cited Independent Electoral and Boundaries Commission v Maina Kiai & 5 Others, and urged the Court to guard against tendencies towards endless litigation by dismissing the appeal with costs. 12. From the foregoing summary, there is no dispute that the parties to this appeal had a business relationship whereby the appellant supplied cement to the respondent. They are further in agreement that, as a result the appellant filed Migori SCCCOMM El96 of 2024 to recover the balance of the sums due for goods sold and delivered to the respondent. When the appellant thereafter filed Homa Bay Magistrate’s Court Civil Case No. E019 of 2025, the respondent raised a Preliminary Objection contending that the suit was res judicata; which objection was upheld by the learned magistrate and the suit dismissed accordingly. 13. While the appellant contends that the Migori suit was not heard and determined on merit, the respondent was of the posturing that the Migori suit was dismissed for want of prosecution; and therefore determined with finality. In the premises, the single issue for determination herein is whether the learned magistrate misdirected herself in law by holding that the suit before her was res judicata and thereby striking out the appellant’s suit prematurely without affording it an opportunity to be heard on the substantive merits of the case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6706/eng@2026-04-30 3

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14. It is now trite that an appellate court ought not to interfere with the discretion of the lower court unless such interference is warranted. In United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd 1985 E.A 898, it was held: The Court of Appeal will not interfere with a discretionary decision of the judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the judge to the various factors in the case. The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong.” 15. Section 7 of the Civil Procedure Act states as follows in peremptory 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 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.” 16. The issue of res judicata goes to jurisdiction and can be raised at any stage of the proceedings, including on appeal. Its rationale was aptly explicated by the Court of Appeal in Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others 2017 eKLR thus: The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common-sensical protection against wastage of time and resources … Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.” 17. And, as was stated by the Court of Appeal in Kenya Commercial Bank Ltd vs. Benjoh Amalgamated Ltd 2017 eKLR, the elements set out in the aforestated provision are conjunctive and must all exist to attract the invocation of the doctrine. Here is what the Court of Appeal had to say: The elements of res judicata have been held to be conjunctive rather than disjunctive. As such, the elements reproduced below must all be present before a suit or an issue is deemed res judicata on account of a former suit; (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. … https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6706/eng@2026-04-30 4

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Cognizant of the above principles, the courts called upon to decide suits or issues previously canvassed or which ought to have been raised and canvassed in the previous suits have not shied away from invoking the doctrine as a bar to further suits. As was stated in Henderson v Henderson (1843) 67 ER 313, res judicata applies not only to points upon which the court was actually required by parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time…” 18. In the light of the foregoing, the question to pose is whether the Migori suit, which was dismissed for want of prosecution, was heard and determined on the merits so as to attract the application of the res judicata doctrine. 19. In Mumira v Attorney General (Constitutional Petition E007 of 2020) 2022 KEHC 271 (KLR) (8 April 2022) (Ruling) this very issue arose for determination and the Court held: 14. From the jurisprudence discussed earlier, it is clear that the previous suit must have been determined conclusively and a final Judgment rendered on the merits. Even in Njue Ngai v Ephantus Njiru Ngai & Another, the court in the above underlined sentence, the court cited authorities/decisions stating that there must be a determination on the main questions. Turning to this case, the question is whether a dismissal for want of prosecution can be termed as a final determination on merits. In Cosmas Mrombo Moka v Co-operative Bank of Kenya Limited & another14 the High Court dismissed a similar objection as raised in this Petition declining to buy the arguments raised in this Petition. Also, in Moses Mbatia v Joseph Wamburu Kihara15 the court held that dismissal of a suit for nonattendance or want of prosecution is not synonymous with a suit that has been heard and determined. On this ground alone, the Respondent’s argument that dismissal of a suit for want of prosecution constitutes res judicata collapses14{2018} e KLR.15{2021} e KLR. 20. And, in Tee Gee Electrics and Plastics Company Ltd v Kenya Industrial Estates Limited 2005 KLR 97 the Court of Appeal held Both the policy rationale as well as our case law lean in the direction that a suit will only be deemed to be barred by res judicata when it was heard and determined on the substantive merits of the case as opposed to suits that are dismissed on preliminary technical points. Res Judicata bars a future suit only when the case is resolved based on the facts and evidence of the case or when the final judgment concerned the actual facts giving rise to the claim. For example, dismissal of a case for lack of subject matter or because the service was improper or even for want of prosecution does not give rise to judgments on the merits and therefore do not trigger the plea of res judicata…” 21. Secondly, there is no gainsaying that the Preliminary Objection was based on an allegation of fact, in that to verify whether or not the Migori suit was dismissed for want of prosecution, the lower court needed to look at the proceedings of that case. In Oraro v Mbaja 2005 1 KLR 141, Hon. Ojwang, J. (as he then was) held that: ...A "preliminary objection" correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed...Where a court needs to investigate facts, a matter cannot be raised as a preliminary point...Anything that purports to be a preliminary https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6706/eng@2026-04-30 5

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objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence..." 22. 23. It is therefore my finding that the respondents’ Preliminary Objection was improperly taken. From the foregoing authorities, two issues stand out: (a) That a dismissal for want of prosecution, while it terminates proceedings, is not a determination on the merits. (b) That res judicata as a bar ought not to be raised where there are facts to be ascertained by the court. Consequently, I find merit in the appeal. The same is hereby allowed and orders given as hereunder: (a) That the Ruling and Order delivered on 28th March 2025 be and is hereby set aside in its entirety and that Homa Bay CMCC E019 of 2024 be set down for hearing and determination on its merits. (b) Each party to bear own costs of the appeal. It is so ordered. DATED AND SIGNED AND DELIVERED VIRTUALLY THIS 30TH APRIL 2026 ……………………..…………… OLGA SEWE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6706/eng@2026-04-30 6

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