Peter Odiwuor Ngoge t/a O.P. Ngoge & Associates v Onyango & 5 others; Attorney General & another (Interested Parties) [2021] KESC 10 (KLR)

Peter Odiwuor Ngoge t/a O.P. Ngoge & Associates v Onyango & 5 others; Attorney General & another (Interested parties) (Petition 18 of 2015) [2021] KESC 10 (KLR) (Civ) (22 October 2021) (Ruling)

Neutral citation number: [2021] KESC 10 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Petition 18 of 2015

PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala, NS Ndungu & I Lenaola, SCJJ

October 22, 2021

Between

Peter Odiwuor Ngoge t/a O.P. Ngoge & Associates

Applicant

and

Josephine Akoth Onyango

1st Respondent

Simon Otieno Onyango

2nd Respondent

Director of Public Prosecutions

3rd Respondent

Director of Criminal Investigations Department

4th Respondent

Sehit Investments Limited

5th Respondent

Kenya Commercial Bank Ltd

6th Respondent

and

Attorney General

Interested party

Kenya National Commission on Human Rights

Interested party

(Being an Appeal arising from the Judgment of the Court of Appeal delivered at Nairobi on the 2nd October 2015 in Civil Appeal No. 51 of 2014)

Ruling

1. On 5th October 2017, this Court delivered a Judgment in which it dismissed the appeal herein for want of jurisdiction and by a Ruling delivered on 23rd October 2018, the applicant’s Motion for review of that Judgment was similarly dismissed. This being the third time the applicant is having a bite on the same cherry, the facts are not pertinent to the present Ruling.

2. Notwithstanding the finality of our decisions above, the Applicant, on 3rd November 2020, filed yet another application seeking orders to review the Judgment and Ruling on review of the same Judgment.

3. We have perused that application and can only but agree with the 6th respondent that;i.The principle of res judicata is squarely applicable to the present Motion as this court has finally and without equivocation settled both the question of the appeal and review thereof. It is an exercise in futility for us to be called upon, again, to determine the same issues – see //John Florence Maritime Services Limited & cnother v Cabinet Secretary, Transport and Infrastructure & 3 others// [2021] eKLR.ii.Upon delivery of Judgment and the Ruling on review, this court became {{term{refersTo } functus officio}} and there is no known jurisdiction for it to revisit any aspect of the appeal. Certainly, a review upon a review is completely alien to the Supreme Act and the Rules made thereunder. We settled the issue of functus officio in Menginya Salim Murgani v Kenya Revenue Authority [2014] eKLR.iii.On costs, the same principles above apply save that, as the present Motion is utterly frivolous and vexatious, the applicant shall bear the costs hereof.

4. In the event and for reasons above:i.The Notice of Motion dated 14th September 2020 and filed on 3rd November 2020 is hereby struck out.ii.The applicant shall pay costs thereof to the 1st, 2nd and 6th respondents, the only parties that responded to the Motion.

5. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 22ND DAY OF OCTOBER, 2021. P. M. MWILU.....................................................................DEPUTY CHIEF JUSTICE & VICEPRESIDENT OF THE SUPREME COURTM. K. IBRAHIM.....................................................................JUSTICE OF THE SUPREME COURTS. C. WANJALA.....................................................................JUSTICE OF THE SUPREME COURTNJOKI NDUNGU.....................................................................JUSTICE OF THE SUPREME COURTI. LENAOLA.....................................................................JUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA