Wanyonyi & another (Suing as the Father and Mother Respectively and as the Legal Representatives of the Estate of Brian Wekesa Wanjala – Deceased) v Zebedayo (Civil Suit E485 of 2025) [2026] KEMC 826 (KLR)

5. Given the above, the Plaintifi/Respondent took the position that since fraud unveils everything, the judgment in the former suit was vulnerable to being set aside, thus this suit ought to be heard and determined on merit. 6. The Plaintifi/Respondent placed reliance on Steyn v Ruscone (Civil Suit 291 of 2013) [2025] KEHC 6196 (KLR) for the position that res judicata does not apply to a judgment obtained fraudulently. Analysis and Determination 7. This court has given due regard and consideration to the pleadings, written submissions, and the authorities relied upon by the parties herein. The issues for determination are whether the Notice of Preliminary Objection filed by the Respondents/Applicants is properly before this court and whether the same is merited. a. Whether the Notice of Preliminary Objection is Properly before this Court 8. The instant Preliminary Objection is grounded on the doctrine of res judicata set out in section 7 of the Civil Procedure Act, which provides as follows: “ 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.” 9. The foregoing begs the question whether the instant Notice of Preliminary Objection grounded on the doctrine of res judicata is properly before this court. 10. In the often-quoted case of Mukisa Biscuit Manufacturing Co Ltd Vs West End Distributors Limited (1969)E.A 696 , the court defined a preliminary objection in the following words: “ A Notice of Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is exercise of judicial discretion.” 11. The essence of a preliminary objection was given by Law, JA, and Sir Charles Newbold P. in the Mukisa Biscuits case (supra), where Law, JA, at page 700, 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 or 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.”(Emphasis added) 12. The Supreme Court in Aviation & Allied Workers Union Kenya v Kenya Airways Limited & 3 Others [2015] eKLR added its voice to what constitutes a preliminary objection by stating: “ Thus a Preliminary Objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/826/eng@2026-03-24 2

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13. The common thread running through the authorities cited above is that the ingredients of a Notice of Preliminary Objection are that it must be based on pure points of law, the point of law raised in the Notice of Preliminary Objection must be capable of disposing of the suit summarily, and that there should be no contest as to the facts the Notice of Preliminary Objection is based on. 14. It is given that the doctrine of res judicata is a point of law. There is also no dispute that if this court finds that this suit is res judicata the former suit, this suit will be determined summarily. Further, there is no contest between the parties herein on the facts on which the instant Notice of Preliminary Objection is based. 15. Given the foregoing, this court finds that the Notice of Preliminary Objection filed herein is properly before this court since it ticks all the boxes set out in the Mukisa Biscuits case (supra). b. Whether the Notice of Preliminary Objection is Merited 16. This court has already stated earlier in this ruling that the instant Notice of Preliminary Objection is grounded on the doctrine of res judicata set out in section 7 of the Civil Procedure Act. 17. In Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, the Supreme Court, while considering the said provision, held that all the elements outlined in section 7 of the Civil Procedure Act must be satisfied conjunctively for the doctrine of res judicata to be successfully invoked. That means that the partly invoking the doctrine of res judicata must prove that: e. 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. 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. 18. There is no dispute between the parties herein that the issues in the former suit are the same in the instant suit, the former suit was a suit between the parties herein, the parties herein litigated in the former suit under the same title, the issues herein were determined through a judgment in the former suit, and that the court that heard and determined the former suit was clothed with the requisite jurisdiction to do so. 19. The Defendant/Respondent’s sole point of departure is that the judgment in the former suit was reportedly fraudulently obtained through forged documents and impersonation. Therefore, the Defendant/Respondent urged this court to find that a fraudulently obtained judgment cannot be the basis of invoking the doctrine of res judicata. 20. This court agrees with the Defendant/Respondent to the extent that a fraudulently obtained judgment is an exception to the doctrine of res judicata. This legal position can be gleaned from Outa v Okello & 3 others (Petition 6 of 2014) [2017] KESC 25 (KLR), where the Supreme Court stated that the principle of finality can be departed from to meet the ends of justice where the judgment, ruling, or order was obtained by fraud or deceit, among other reasons. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/826/eng@2026-03-24 3

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21. The holding by the Supreme Court in the Outa case (supra) was also cited with approval by Mugambi J, in Steyn v Ruscone (Civil Suit 291 of 2013) [2025] KEHC 6196 (KLR) while determining a suit to set aside an alleged fraudulently obtained judgment. 22. The law in this jurisdiction is that a fraudulent judgment can only be set aside through a fresh suit by invoking section 47 of the Evidence Act and the inherent powers of the court (see Steyn case (supra)v Ruscone (Civil Suit 291 of 2013) [2025] KEHC 6196 (KLR)). 23. The foregoing begs the question of whether the instant suit is a fresh suit seeking to set aside a fraudulently obtained judgment. 24. A reading of the Plaint herein shows that the question of whether the judgment in the former suit was procured fraudulently is not before this court for determination. The instant suit is actually a carbon copy of the former suit. Therefore, the instant suit is not a fresh suit seeking to set aside the judgment in the former suit on account of fraud. 25. It is against this backdrop that this court finds and holds that until the Plaintifi herein files a fresh suit for a declaration that the judgment in the former suit was fraudulently obtained, and until a court of competent jurisdiction makes a declaration to that efiect, the judgment in the former suit binds the parties herein. 26. In the event this court heeds the Plaintifi’s invitation to hear and determine the instant suit before the Plaintifi sets aside the judgment in the former suit on account of fraud, this court will be purporting to sit on an appeal from the judgment delivered by Hon. Maundu in the former suit on 17th July 2024. That is a legal absurdity which this court declines to engage in. 27. The long and short of it all is that the instant suit is res judicata the former suit, at least, for now. Determination 28. The upshot of the foregoing is that the Defendant/Applicant’s Notice of Preliminary Objection dated 10th November 2025 is merited with the consequence that this suit is dismissed with costs of Kshs. 40,000/=. 29. This file is closed. 30. It is so ordered. DATED AND SIGNED AT BUNGOMA THIS 24TH DAY OF MARCH 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Wanyama for the Plaintifi/Applicant C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/826/eng@2026-03-24 4

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