1.The Defendant raised a preliminary objection that this matter is res judicata having been dealt with in CMCC NO. 1199 OF 2014 MOMBASA (Formally ELC NO. 301 of 2012) involving the same Parties, same Property and same issues and the said matter is now concluded hence this Suit should be struck out with costs to the Defendant for being res judicata.
2.The Plaintiff submitted that they filed a suit ELC No. 301 of 2012 which was transferred to the lower court as CMCC No. 1199 of 2014 which was dismissed for want of prosecution on 21st July 2015. They went for review which was equally dismissed. Therefore this matter was is not res judicata as it was never heard and determined.
3.This court has considered the preliminary objection, submissions and authorities cited. The doctrine of res judicata is set out in the Civil Procedure Act at Section 7 as follows:
4.The Civil Procedure Act also provides explanations with respect to the application of the res judicata rule. Explanations 1-3 are in the following terms:
6.Therefore, for a matter to be res judicata, the matters in issue must be similar to those which were previously in dispute between the same parties and the same having been determined on merits by a Court of competent jurisdiction. In the case of Henderson v Henderson [1843-60] All ER 378, the court held that;
7.It follows then that a Court will apply the doctrine in instances where a party raises issues in a subsequent suit, wherein he/she ought to have raised the issues in the previous suit as between the same parties.
8.In that respect, the Court of Appeal held in The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others,  eKLR, that:
9.The Court went on to state on the role of the doctrine:
10.I have perused the pleadings in CMCC No. 1199 of 2014. Indeed, I find that the subject matter is the same and the parties are the same. In applying the stated law to the facts before me, it is clear that the Plaintiffs had an option of appeal but chose to file a fresh suit. In my view, by filing this suit, the Plaintiffs are trying to start to litigate and open up the matter afresh. I find that this suit is res judicata and an abuse of the court process. The application has merit and hence upheld. I therefore strike out the Plaintiffs’ case with costs.It is so ordered.