Nubian Rights Forum & 2 others v Attorney General & 6 others; Child Welfare Society & 9 others (Interested Parties) [2020] eKLR (a) The suit or issue was directly and substantially in issue in the former suit. (b) That former suit was between the same parties or parties under whom they or any of them claim. (c) Those parties were litigating under the same title. (d) The issue was heard and finally determined in the former suit. (e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.” 1017. They further cite the words of the Court in the said decision in which it stated that: (f) “The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectra of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and commonsensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favorable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute or calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.” (Emphasis added) 1018. The 2nd and 3rd Respondents allege bad faith on the part of the 1st Petitioner and urge the Court to note the bad faith it exhibits in instituting two similar suits before this Court and other suits outside the jurisdiction, actions which they term abuse of process. The 1st Petitioner did not respond to these arguments. 1019. We have considered this issue and the submissions made by the 2nd and 3rd Respondents, which have not been countered by the 1st Petitioner. There is no material before us to indicate whether or not the suit filed in the High Court alleging violation of the rights of the Nubians has been determined, and if so, what the outcome thereof was. It would appear, however, that as argued by the 2nd and 3rd Respondents, the issue of alleged violation of the rights of members of the Nubian community has been under consideration by a court of concurrent jurisdiction and has been determined or is pending determination. 1020. We also have before us the decision in Institute for Human Rights & Development in Africa & Open Society Justice Initiative on behalf of Children of Nubian descent in Kenya v Kenya, Communication no. Comm/002/2009 of March 2011 in which the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) found that the Republic of Kenya had violated the rights of children of Nubian descent under the African Charter on the Rights and Welfare of the child, which explicitly recognizes the right to a nationality. It would appear to us, therefore, that the 1st Petitioner is indeed raising issues that have been the subject of judicial interpretation or are pending interpretation in our courts. 1021. However, the issues before us arise in the context of the constitutionality of the amendments to the Registration of Persons Act. As was held by the Court of Appeal in the case of John Florence Maritime Services Limited & Another vs Cabinet Secretary for Transport and Infrastructure and 3 Others, (2015) eKLR the doctrine of res judicata must be sparingly invoked with regard to constitutional petitions, for the reason that rights keep on evolving, mutating and assuming multifaceted dimensions. We therefore decline to find that the 1st Petitioner’s Petition is res-judicata. Summary of Findings http://www.kenyalaw.org - Page 169/174