Mghendi v Ichami (Commercial Case E1194 of 2025) [2026] SCC 83 (KLR) (16 April 2026) (Ruling) Neutral citation: [2026] SCC 83 (KLR) REPUBLIC OF KENYA IN THE SMALL CLAIMS COURT AT MOMBASA COMMERCIAL CASE E1194 OF 2025 TN MWANGEKA, RM APRIL 16, 2026 BETWEEN KENNEDY MDINDI MGHENDI ............................................................ CLAIMANT AND MACLOUD ICHAMI ........................................................................... RESPONDENT RULING 1. By Preliminary Objection dated 20th February 2026 the applicant contends this courts jurisdiction to hear the claim on account of the same being res judicata. 2. The court has looked at the Preliminary objection together with submissions by the Claimant/ Respondent in opposition, the applicant did not file any submissions, and renders itself as hereunder; 3. The Supreme Court in Kenya Commercial Bank Ltd & another v Muiri Cofee Estate Ltd & 3 others [2016] KESC 6 (KLR) defined res judicata as a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. The court further reasoned that the doctrine of res judicata, in efiect, 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 eficacy 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. 4. 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 whether these are the same in the subsequent https://new.kenyalaw.org/akn/ke/judgment/scc/2026/83/eng@2026-04-16 1
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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. 5. Section 13(2) of the Small Claims Court Act provides that a claim shall not be brought before the Court if proceedings relating to that claim are pending in or have been heard and determined by any other Court. 6. In the instant case, the applicant states that the matters raised in this matter were substantially and directly in issue in SCCCOM E747/2025 which suit was heard and fully determined by a court of competent jurisdiction. Despite the applicant relying on the SCCCOM E747/2025 they did not find it necessary to attach the pleadings or judgement in the former suit to aid the court in its finding. 7. Be that as it may, the court has gone through the pleadings and judgment in SCCCOM E747/2025 and established that the parties therein were the same as those in the instant case. In SCCCOM E747/2025 the Claimant herein was sued as the respondent who then enjoined the Respondent in the present case as a third party. Both the Claimant and the Respondent in the instant case took part in the hearing in SCCCOM E747/2025 as per the judgment in SCCCOM E747/2025. 8. As to the commonality of the subject matter, the subject in issue in SCCCOM E747/2025 was a claim for Kshs. 526,000/= which had been advanced to the Respondent/Claimant for the drilling of a water borehole which did not yield. The Respondent/Claimant admitted the claim but shifted blame to the Applicant/Respondent sighting bad advice as the reason for the project’s failure. 9. This admission was so clear and unequivocal that it amounts to an admission of liability entitling the Claimant there to judgment and therefore the Respondent/Claimant herein has no defence as was held in Cassam & another v Sachania & another [1982] KECA 1 (KLR). So much so that the court proceeded to dismiss the Third-Party proceedings, that is the claims against the Respondent/Claimant and the Applicant in the present case on merit on that account. 10. The present case is a claim seeking the following order: a. Mr Ichami to produce his borehole drilling permit s and the company registration documents. b. Mr Ichami to present certified documents from the geologist he engaged. c. Reimbursement of Kshs 722,000/= incurred in the failed borehole project. d. Award additional compensation for damages to my image and reputation caused by his fraudulent conduct. e. Costs and Interest. f. Release the drilling machine until the matter is determined. 11. The facts that would to be litigated in order to justify the grant or otherwise of the above stated prayers are substantially the same as those litigated in SCCCOM E747/2025. Any matter which might and ought to have been made ground of defence or attack in SCCCOM E747/2025 is deemed to have been a matter directly and substantially in issue in such suit under the doctrine of res judicata. I have looked at the pleadings filed by the Respondent/Claimant in SCCCOM E747/2025 and in the present case. The issues pleaded are substantially the same. 12. Having looked at the pleadings and judgment in SCCCOM E747/2025 and those herein, I do find that the claim herein is res judicata. As such the preliminary objection is upheld, this claim is thus struck out as under section 13(2) of the Small Claims Court Act with no orders as to costs. https://new.kenyalaw.org/akn/ke/judgment/scc/2026/83/eng@2026-04-16 2
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DATED SIGNED AND READ VIRTUALLY AT MOMBASA THE……16TH…….DAY OF……… APRIL… 2026 HON. THERESA N. MWANGEKA RESIDENT MAGISTRATE/ADJUDICATOR In the presence of; ……Mr. Taabu…… for Claimant; ……N/A…… for Respondent C/A Sabina Signed By/For: THE JUDICIARY OF KENYA HON. THERESA N. MWANGEKA MOMBASA SMALL CLAIMS COURT SMALL CLAIMS COURT DATE: 2026-04-16 10:34:43 https://new.kenyalaw.org/akn/ke/judgment/scc/2026/83/eng@2026-04-16 3
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