In the case of Kikonda Butema Farm Ltd v Attorney General Constitutional Petition No.10 of 2012, this court observed: “the respondent had in reply, raised the issue of res judicata arguing that all the matters raised in the Petition had been litigated upon before and determined by Courts of competent jurisdiction. We agree that in ordinary cases, this matter would have been res judicata. However, since the Constitutionality of this matter had not been raised in any of the said cases and since it is only this Court that is seized with the original jurisdiction over the interpretation of the Constitution, we find that res judicata does not apply in this case.” The above principle is applicable to the instant Petition and the finding of this court is that it is not res judicata. We also wish to point out that this is one case where the High Court could have referred the question of the constitutionality of section 13(2) of the Pensions Act for interpretation before deciding whether the pension granted to the petitioner was proper. This should have been done by the trial court especially on realization that it had no jurisdiction to resolve a constitutional issue which was apparent. This is the better procedure and practice the trial court ought to have followed. Court ought to adopt it to ensure reliability of Judgments.
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