Kiarie v SBG Securities Limited (Formerly known as CFC Financial Service Limited) (Civil Appeal 582 of 2019) [2025] KECA 1958 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that once one judge finally decides an issue like limitation, another judge in the same court cannot reopen it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned B. Ongaya, J. revisited the question of limitation which the learned M.N. Nduma, J. had conclusively determined, both Judges being of concurrent jurisdiction; in other words, had the question of limitation been determined by a court of concurrent jurisdiction
Key legal issues
#Whether a judge of concurrent jurisdiction may revisit an issue of limitation already conclusively determined by another judge in the same suit
No. Nduma, J. had conclusively determined that time under section 90 of the Employment Act ran from the date the appellant discovered the redundancy was stage-managed (11 July 2011), and dismissed the preliminary objection. Ongaya, J. erred in reopening and determining the issue at trial.
The preliminary objection was heard and determined on the merits by Nduma, J., who found the suit was not statute-barred. No appeal was preferred against that ruling. Section 7 of the Civil Procedure Act bars trying an issue already heard and finally decided between the same parties by a competent court. Ongaya, J., of concurrent jurisdiction, could not sit as a court of appeal over that ruling; the respondent's remedy was an appeal.
Whether the requirement of a fair hearing was satisfied by the trial judge's determination of limitation at trial despite both parties having addressed it
Ongaya, J. was obliged to determine, as a preliminary matter, the res judicata argument on the limitation question because both parties had extensively and diametrically opposed positions on it.
Both parties had addressed the court in writing on whether the limitation issue had been conclusively determined, taking diametrically different positions. The judge therefore had to deal with that question rather than reopen the decided issue; in reopening it he fell into error. The matter is remitted for a fresh hearing before another judge.
Legal principles established
#- A issue conclusively determined by a judge of concurrent jurisdiction, which has not been appealed or set aside, cannot be reopened by another judge of that court; the aggrieved party's remedy lies on appeal.
- The general principles of res judicata extend beyond section 7 of the Civil Procedure Act and apply to interlocutory applications and issues within a suit.
Court orders
#- 1.The appeal is allowed with costs to the appellant
- 2.ELRC Cause No. 1166 of 2014 at Nairobi is to be heard afresh by a Judge other than B. Ongaya, J.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court
- ELRC Cause No. 1166 of 2014, Nairobi
- Jurisdiction invoked
- First appeal to the Court of Appeal against the decision of the Employment and Labour Relations Court (specific provision not stated in the judgment)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, the learned M. N. Nderi, J., having found that the appellant's suit was not time barred, the learned B. Ongaya, J. fell into error when he reopened it and found that the suit was statute barred by limitation. This was a matter best left for the Court of Appeal, if it aggrieved the respondent.
We have no hesitation in saying that the general principles of res judicata cannot be limited by section 7 of the Civil Procedure Act and that the section is not exhaustive.
Consequently, we allow the appeal with costs to the appellant. We order that ELRC Cause No. 1166 of 2014 at Nairobi be heard afresh by a Judge other than B. Ongaya, J.
Issues in the judgment
#The judge who determined the preliminary objection is inconsistently named: the judgment repeatedly refers to 'M. N. Nduma, J.' but the concluding paragraph refers to 'M. N. Nderi, J.'
The judgment contains an apparent internal confusion of dates regarding the preliminary objection, describing an objection 'dated 22nd May 2017' and a ruling 'dated 25th August 2017', yet quoting the trial judge as saying the objection 'on 25th August 2017 had been dismissed on 25th August 2017'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiarie v SBG Securities Limited (Formerly known as CFC Financial Service Limited) (Civil Appeal 582 of 2019) [2025] KECA 1958 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1958/eng@2025-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.