Kombe & another v Mwang’ombe (Civil Case E035 of 2025) [2025] SCC 2 (KLR)

B. Issues For Determination. 5. The following issues commend themselves for determination by this court. a. Whether this instant claim is res judicata b. What orders can issue in the circumstances. C. Analysis and determination. a. Whether the claim is res judicata 6. I have had occasion to peruse the pleadings filed in case number E003 OF 2023 and those filed herein and it is clear that they are similar in terms of the parties as well as the reliefs sought. 7. It is not in doubt that the issues raised and the reliefs sought are directly, materially and substantially in issue with those in E003 OF 2023 where the court determined the issues on their merits and delivered a decision. The claimants were as of right granted another bite at the cherry but sadly the high court which is the last resort under the small claims court Act did not agree with their case. 8. It is even said that lighting does not strike a tree twice but in this case the fate of dismissal struck the claimant twice and am afraid a third one is loading shortly. 9. For res judicata to be invoked in a civil matter the following elements had to be demonstrated: a. there was a former judgment or order which was final; b. the judgment or order was on merit; c. the judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and d. there had to be between the first and the second action identical parties, subject matter and cause of action. 10. The doctrine of res judicata was based on the principle of finality which was a matter of public policy. The principle of finality was one of the pillars upon which the judicial system was founded and the doctrine of res judicata prevented a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensured that litigation came to an end, and the verdict duly translated into fruit for one party, and liability for another party, conclusively. 11. A party relying on res judicata must not only plead, frame and argue the issue of res judicata but they must also discharge the burden of proof to establish res judicata to the standard required by law. 12. The doctrine of "res judicata" is provided for under section 7 of the Civil Procedure Act in that: “ 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 issue in which such issue has been subsequently raised, and has been heard and finally decided by such court.” 13. Whenever the question of res judicata is raised as the respondent has done in this claim, I am duty bound to look at the decision claimed to have settled the issues in question; the entire pleadings and https://new.kenyalaw.org/akn/ke/judgment/scc/2025/2/eng@2025-07-25 2

page 2 of 4

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 case. 14. 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. This test is summarized in Bernard Mugo Ndegwa v James Nderitu Githae & 2 others, [2010] eKLR, under five distinct heads: [i] the matter in issue is identical in both suits; [ii] the parties in the suit are the same; [iii] sameness of the title/claim; [iv] concurrence of jurisdiction; and [v] finality of the previous decision. 15. I have had the occasion to peruse at the annextures to the application and I am satisfied that the matter in question is identical in both suits as the claimant is seeking judgment in the sum of Kshs.183,077 with interest from 30/08/2022 following the alleged destruction of their property by livestock allegedly owned by the respondent. I am also satisfied that the parties are the same, the title and claim is the same as the previous suit, there is concurrence of jurisdiction and there is finality of the decision on the issue in question this is after an appeal was preferred to the high court and was dismissed and the high court being the final court of appeal and which had the requisite jurisdiction to hear and determine the matter. 16. The doctrine of res judicata, in efiect, allows a litigant only one bite at the cherry. The bite might not be sweet to the mouth and tongue but once bitten a litigant should be ready to live by the awful taste in his/her mouth. b. What orders can issue in the circumstances. 17. Having found that the suit is res judicata, there are no orders that can issue in the circumstances save for an order dismissal of the claim with costs. 18. The basic rule on attribution of costs is that costs follow the event. It is also well recognized that the principle costs follow the event is not to be used to penalize the losing party rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case[application]. 19. The claimant opposed the application and being the successful party in the circumstances, he is awarded costs of the application. I have awarded costs despite following the event the claimants unnecessarily dragged the respondent back in court while well aware that this claim was heard and determined at trial and appeal stages. D. Conclusion And Disposition. 20. The court find that the claim as instituted in the statement of claim dated 11th June 2025 is res judicata to to case number Taita Taveta small claims court number E003 OF 2023. 21. The application dated 16/7 /25 is thus meritorious and it is allowed with costs to the respondent/ Applicant. 22. Consequently, the claim contained in the statement of claim dated 11th June 2025 is dismissed with costs to the respondent/Applicant. 23. As I pen ofi I should however state that counsel for the claimant had the unshaken audacity to file this claim knowing well that the claim has already been adjudicated upon up to the appeal stage and still had the audacity to insist in filing a response to the claim well aware of what has already transpired having been on record in the matters at the Taveta SCC court and the high court when the matters were dismissed. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/2/eng@2025-07-25 3

page 3 of 4

24. In the future I hope such deliberate actions by counsel intended to mislead the court into giving confiicting decisions over the same subject matter shall be punishable by payment of ensuing costs by advocates personally who have failed and/or ignored to advice their clients on the import of such actions and still participate in the said mess. 25. Orders accordingly. DATED, DELIVERED AND SIGNED AT VOI LAW COURTS THIS 25TH DAY OF JULY 2025. F.M. MULAMA ADJUDICATOR/RM In the presence of: Court Assistant:- Fathiya Loo. Mr.Mwanyuma for /Respondent/Applicant. Mr. Mwazighe for the Claimant. https://new.kenyalaw.org/akn/ke/judgment/scc/2025/2/eng@2025-07-25 4

page 4 of 4