Nairobi City Water and Sewerage Company v Capture Solutions Ltd (Civil Application E136 of 2022) [2026] KECA 1522 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed Nairobi Water's fourth attempt to challenge an arbitral award, ruling that repeated applications on the same issues are barred and abusive.
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 full Court should interfere with the decision of the single Judge (Sichale, JA) dismissing the applicant's motion for extension of time to apply for leave to appeal, i.e. whether the single Judge failed to exercise her discretion judicially.
- 2.Whether the learned single Judge misapprehended the nature of the relief sought before her and, if so, whether that misdirection avails the applicant.
- 3.Whether the applicant's motion was barred by res judicata under section 7 of the Civil Procedure Act, being an attempt to re-open matters determined or properly raisable in the earlier applications before Ouko, JA and the full bench.
- 4.Whether the applicant's successive applications founded on the same factual matrix amounted to an abuse of the process of the Court through litigation in instalments.
- 5.Whether the applicant was entitled to extension of time under Rule 4 of the Court of Appeal Rules to apply for leave to appeal (found unnecessary to determine, the motion having been fatally compromised).
Key legal issues
#What is the standard upon which the full Court may interfere with a single Judge's discretionary decision on a reference under Rule 57(1)(b) of the Court of Appeal Rules, 2022?
The full Court interferes only where it is demonstrated that the single Judge failed to exercise discretion judicially - by considering an irrelevant matter, failing to consider a relevant one, or acting on a misapprehension of fact or law - and not merely because it would have reached a different conclusion.
The Court restated the test from Kimathi and Makove. It accepted that Sichale, JA misapprehended the procedural history by treating the Rule 39(b) extension-of-time-to-apply-for-leave application as substantially identical to the earlier applications, which concerned extension of time to file a notice of appeal and a procedurally defective leave application. However, on the totality of the record, the misdirection did not avail the applicant because the earlier rulings had conclusively addressed the inordinate delay and were never challenged by reference or further appellate process.
Whether the applicant's motion for extension of time to apply for leave to appeal was barred by res judicata.
It was. Section 7 of the Civil Procedure Act bars not only matters directly and substantially in issue previously but also those which ought to have been raised, and extends to interlocutory and appellate proceedings; the motion sought to re-open matters determined or properly raisable in the earlier proceedings.
Following the Supreme Court's decision in John Florence Maritime Services, the Court affirmed the expanded application of res judicata as a principle of general application grounded in the public interest in finality of litigation and the efficient administration of justice. The applicant did not challenge the rulings of Ouko, JA and the full bench by reference or further appeal. The present application was therefore, in substance, an attempt to re-open matters either directly and substantially determined or which ought properly to have been raised earlier.
Whether successive applications founded on the same factual matrix constitute an abuse of the process of the Court.
They do. Abuse of process, rooted in the Court's inherent jurisdiction, includes litigation in instalments; the applicant's repeated attempts to secure appellate intervention through successive applications amounted to impermissible litigation in instalments.
Drawing on Muchanga Investments, the Court held that abuse of process includes the improper use of judicial proceedings to relitigate determined issues and to pursue successive applications in a manner that is oppressive, vexatious or designed to circumvent final judicial determinations. The applicant's attempts before Ouko, JA, the full bench and the single Judge were successive applications on the same factual matrix, undermining the finality of litigation. Such conduct constitutes an abuse of the process of the Court.
Whether the applicant was entitled to extension of time under Rule 4 of the Court of Appeal Rules to apply for leave to appeal.
Not determined on the merits; the Court found it unnecessary to consider the Rule 4 motion, the same having been fatally compromised by the applicant's attempt to relitigate matters already conclusively determined.
Having found the motion res judicata and an abuse of process, the Court declined to reach the extension-of-time criteria. The applicant's explanations - procedural missteps, COVID-19 disruptions to internal decision-making, its status as a public entity obliged to defend public funds under Articles 201 and 227, and the asserted arguability of the intended appeal - were therefore never evaluated. The disposition rested entirely on res judicata and abuse of process.
Legal principles established
#- Res judicata under section 7 of the Civil Procedure Act bars not only matters directly and substantially in issue in previous proceedings between the same parties, but also matters which ought to have been raised therein.
- Res judicata is not confined to substantive suits but extends to interlocutory and appellate proceedings where finality, identity of parties and issues, and competence of jurisdiction are satisfied.
- Abuse of the process of the Court encompasses litigation in instalments, where a party advances its case piecemeal through multiple proceedings after having had an opportunity to present its entire case.
- On a reference against a single Judge's discretionary decision, the full Court interferes only where the Judge failed to exercise discretion judicially - by taking into account an irrelevant consideration, failing to consider a relevant matter, or acting on a misapprehension of fact or law - and not merely because it would have reached a different conclusion.
Court orders
#- 1.The reference is dismissed.
- 2.The ruling of the learned single Judge (Sichale, JA) delivered on 4th November 2022 is upheld.
- 3.The applicant's motion for extension of time to apply for leave to appeal is dismissed with costs to the respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya (ruling of a single Judge, Sichale, JA)
- Jurisdiction invoked
- Rule 57(1)(b) of the Court of Appeal Rules, 2022 - reference to the full Court against a decision of a single Judge (the underlying motion also invoked Articles 159(d), 164(5), 201(d), 227 and 259 of the Constitution, sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rules 4, 39(b) and 47 of the Court of Appeal Rules)
Relief refused
#Extension of time to file an application for leave to appeal against the High Court's decision of 27th August 2020 (Misc. Civil Application No. E679 of 2020) recognizing and enforcing the arbitral award, and consequential leave to appeal
The motion was barred by res judicata and constituted an abuse of process as a successive attempt to re-open matters determined or properly raisable in earlier applications; the Rule 4 criteria were not reached
Interference by the full Court with the decision of the single Judge on the reference
Although the single Judge misapprehended the procedural history, the misdirection did not avail the applicant on the totality of the record
Costs
The reference is dismissed and the applicant's motion for extension of time is dismissed with costs to the respondent.
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.
Accordingly, the reference is dismissed. The ruling of the learned single Judge is upheld, and the applicant's motion for extension of time is hereby dismissed with costs to the respondent. It is so ordered.
The doctrine of res-judicata, codified under section 7 of the Civil Procedure Act, bars, not only matters that were directly and substantially in issue in previous proceedings between the same parties, but also those which ought to have been raised therein.
Its application is not confined to substantive suits but extends to interlocutory and appellate proceedings where the elements of finality, identity of parties and issues, and competence of jurisdiction are satisfied.
It also encompasses litigation in instalments, where a party, having had an opportunity to present its entire case, seeks to advance it piecemeal through multiple proceedings
In the present case, the applicant's repeated attempts to secure appellate intervention through successive applications founded on the same factual matrix amount to impermissible litigation in instalments.
However, that misdirection does not, on the totality of the record, avail the applicant.
Such conduct undermines the principle of finality of litigation and constitutes an abuse of the process of the Court.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nairobi City Water and Sewerage Company v Capture Solutions Ltd (Civil Application E136 of 2022) [2026] KECA 1522 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1522/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.