Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR services. 1012. We note that all the parties are agreed that the use of digital data is the way of the future. The challenge is to ensure, among other things, that no one is excluded from the NIIMS and the attendant services. This may occur due to lack of identity documents, or lack of or poor biometric data, such as fingerprints. In our view, there may be a segment of the population who run the risk of exclusion for the reasons already identified in this judgment. There is thus a need for a clear regulatory framework that addresses the possibility of exclusion in NIIMS. Such a framework will need to regulate the manner in which those without access to identity documents or with poor biometrics will be enrolled in NIIMS. Suffice to say that while we recognize the possibility of this exclusion, we find that it is in itself not a sufficient reason to find NIIMS unconstitutional Whether the 1st Petitioner’s Petition is barred by the Principles of Sub Judice Res Judicata 1013. A final, corollary issue raised against the 1st Petitioner’s case is that its Petition offends the principles of sub-judice and res judicata. The 2nd and 3rd Respondents submit that the 1st Petitioner is precluded from reviving the Nubian community cases in the present Petition by the doctrine of sub judice. They submit that the issues raised by the 1st Petitioner in this matter were previously litigated before the High Court. It is their contention that in the Nubian Community case before the African Commission, the Nubian Community, which was the complainant, noted that it had instructed the Center for Minority Rights Development to institute a suit against the government of Kenya for denial of citizenship and for discrimination in the issuance of identity documents. 1014. While noting that the 1st Petitioner has not proved to the court whether that petition, which was filed on 17th March 2003 and referred to in the Nubian Community case, was decided, it is their submission that the 1st Petitioner is nonetheless barred by the doctrine of sub judice from litigating on issues which had been previously raised in a petition before this Court. The 2nd and 3rd Respondents rely on section 6 of the Civil Procedure Act and the decision in Edward R. Ouko v Speaker of the National Assembly & 4 others [2017] eKLR in which the High Court set out the principles to be considered in order to find that the doctrine was applicable. These principles, according to the 2nd and 3rd Respondents, are first, that there must exist two or more suits filed consecutively; that the matter in issue in the suits or proceedings must be directly and substantially the same; that the parties in the suits or proceedings must be the same or must be parties under whom they or any of them claim, litigating under the same title; and the suits must be pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed. 1015. It is their submission that the above principles apply with respect to the present petition by the 1st Petitioner. They assert that both petitions filed by the Nubian Community seek to enforce their right to citizenship and nondiscrimination under the Constitution; that both claims are directed against the government and the Ministry of Interior and Co-ordination of the National Government and Security through the Attorney General; and that both petitions were instituted either by the 1st Petitioner acting in its own capacity or through a non-governmental organization as in the first petition. 1016. It is also the 2nd and 3rd Respondents’ submission, in the alternative, that the 1st Petitioner’s claim in the present petition is barred by the doctrine of res judicata. They submit that in the event that it is proved that the earlier petition filed in the High Court was determined, then the 1st Petitioner is barred from re-litigating the same issue on the basis of the doctrine of res judicata set out in section 7 of the Civil Procedure Act and explanation 3 thereof. They rely in support of this submission on the decision in Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, Nairobi ([2017] eKLR) in which the Court of Appeal noted that: “……for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms; http://www.kenyalaw.org - Page 168/174