GAZETTE NOTICE NO. 804

under the same title, in a court competent to try such subsequent suits or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court." The application by the judgment debtor is not a new suit, but in bringing this application the party is attempting to reverse proceedings and court orders that have settled the matter with telling finality. In the event the issues being raised now were not raised during the proceedings in the High Court and Court of Appeal, the defendants have no one to blame but themselves. In the English case of Henderson Vs. Henderson (1843) 67 ER 313 the court stated as follows— "Where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, as part of the contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applied, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence might have brought forward at the time. "See also Bernard Mugo Ndegwa Vs James Nderitu Githae and 2 Others (2010) eKLR. In the case of E.T Vs Attorney's-General and Another (2012) eKLR the court said as follows— "The courts must always be vigilant to guard litigants evading the doctrine of res judicata by introducing new causes of action so as to seek the same remedy before the court. The test is whether the plaintiff in the second suit is trying to bring before the court in another way and in a form of a new cause of action which has been resolved by a court of competent jurisdiction. In the case of Omondi Vs National Bank of Kenya Limited and others (2001) EA 177 the court held that, 'parties cannot evade the doctrine of res judicata by merely adding other parties or causes of action in a subsequent suit.' In that case the court quoted Kuloba J., in the case of Njangu Vs Wambugu and another Nairobi HCCC No. 2340 of 1991 (unreported) where he stated, if parties were allowed to go on litigating forever over the same issue with the same opponent before courts of competent jurisdiction merely because he gives his case some cosmetic face lift on every occasion he comes to court, then I do not see the use of the doctrine of res judicata". Applying the foregoing principles to the present application, I observe that the defendants/judgment debtors had all the time and opportunity to advance and canvass the issues now raised but lost. The judgment creditors have a decree in their favour. It is their right to execute the same, and applications such as the one brought by the judgment debtors, should not be encouraged by the courts. The only order that commends itself in the circumstances of this case, in view of the age of this litigation which must now come to rest, is that the application is dismissed with costs to the judgment creditors. Orders accordingly. Dated, signed and delivered at Nairobi this 29th day of June, 2016. A. MBOGHOLI MSAGHA, MR/2484351 Judge. 27th January, 2017 THE KENYA GAZETTE 615