Nyariki & 3 others v County Government of Nyamira & 2 others (Petition E055 of 2021) [2025] KEELRC 1829 (KLR)
The bottom line
#A Kenyan court struck out repeated contempt applications because they copied an earlier one already decided — you generally get one bite at the cherry.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a plea of res judicata meets the threshold of a preliminary objection
- 2.Whether the petitioners' applications dated 5th February 2025 and 9th April 2025 are res judicata the application dated 15th September 2023
- 3.Whether the applications amount to an abuse of court process
Key legal issues
#Whether res judicata can be raised as a preliminary objection
Yes. The court adopted the Court of Appeal's position in the Maina Kiai case that res judicata is a matter properly addressed in limine as it has jurisdictional consequences.
The court relied on the Maina Kiai decision, holding that res judicata constitutes a statutory peremptory preclusion of a certain category of suits under Section 7 of the Civil Procedure Act, and therefore possesses jurisdictional consequences capable of disposing of a suit before hearing, satisfying the Mukisa Biscuit threshold of a pure point of law.
Whether the instant applications were res judicata the application dated 15th September 2023
Yes. All the conjunctive elements of res judicata were met: same parties, same title, substantially identical issues, heard and finally determined by a competent court in the ruling of 6th June 2024.
The court found the orders sought in the 2025 motions identical to those in the 2023 motion save for the fine amount; the grounds, supporting affidavit and even signature page (with a hand-changed date) were the same. The earlier motion alleged contempt of the same orders, was heard and dismissed on 6th June 2024, and was not reviewed or appealed.
Whether the applications were an abuse of court process
Yes. Re-filing a carbon copy of a dismissed application with insignificant modifications amounted to abuse of judicial process.
The court cited Muchanga Investments and Edna Cherono Bore on abuse of process through duplication of proceedings, which wastes court time, risks inconsistent findings and oppresses the opposite party. The petitioners' replication of the former application with minor modifications was a vexed attempt at a second bite at the cherry.
Legal principles established
#- Res judicata is properly addressed as a preliminary objection because it has jurisdictional consequences as a statutory peremptory preclusion of suits.
- The elements of res judicata are conjunctive and must all be satisfied for the bar to be upheld.
- Re-filing a carbon copy of an application already heard and determined amounts to abuse of court process.
Court orders
#- 1.The Notice of Motions dated 5th February 2025 and 9th April 2025 are struck out with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction over contempt proceedings in a petition; motions expressed under Section 5(1) of the Judicature Act, Order 40 Rule 3 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 3 and 3A of the Civil Procedure Act
Relief refused
#Orders of committal against the named Nyamira County Government officers and/or fines of Kshs. 500,000 each
The motions were res judicata and an abuse of court process, having replicated an earlier application heard and determined on 6th June 2024
Costs
The notices of motion were struck out with costs to the respondents.
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.
Consequently, the Notice of Motions dated 5th February 2025 and 9th April 2025 respectively, are struck out with costs to the respondents.
In the Court's view, all the requirements of the rule or doctrine of res judicata have been met.
Evidently, the instant applications are a carbon copy of the earlier application with a few insignificant modifications to make them appear dissimilar.
The foregoing sentiments of the Court of Appeal leave no doubt in this court's mind that the rule or principle of res judicata meets the threshold of a preliminary objection as articulated in judicial decisions.
Issues in the judgment
#The judgment inconsistently dates the application being compared: at one point the earlier motion is dated 15th September 2023 and elsewhere 15th September 2025.
The judgment refers to contempt of orders issued on 7th February 2023 whereas the consent was recorded on 7th February 2022.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyariki & 3 others v County Government of Nyamira & 2 others (Petition E055 of 2021) [2025] KEELRC 1829 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1829/eng@2025-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.