Kibogy v Chemweno [1981] KECA 49 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that when a judgment is varied by substitution, the entire decree including costs is set aside, entitling the winner to restitution of costs paid.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the decree of the High Court was varied or set aside by the Court of Appeal's judgment on the first appeal, for purposes of restitution of costs paid under Nyarangi J's order
- 2.Whether the issue of restitution was res judicata having been raised before Platt J
Key legal issues
#Effect of a judgment varying a decree
The High Court decree, including its costs order, was wholly set aside and substituted.
The Court of Appeal held that its earlier judgment, though using the word 'vary', in substance set aside the entire decree of Nyarangi J and entered judgment for the appellant for possession, arrears of rent and mesne profits, with interest and costs of the High Court suit. Platt J therefore erred in holding that part of the High Court judgment still stood.
Res judicata
The restitution issue was not res judicata because Platt J never finally decided it.
Although the same issue was directly and substantially in issue before Platt J between the same parties, he did not decide it; he merely referred the parties back to the Court of Appeal. Section 7 of the Civil Procedure Act requires that the matter have been heard and finally decided, a condition precedent to res judicata.
Legal principles established
#- A decree that is varied by substituting judgment for the appellant is in substance set aside in its entirety, including the order for costs, entitling the successful party to restitution.
- Res judicata requires that the issue have been heard and finally decided by a competent court; an issue merely heard but not finally decided is open.
Court orders
#- 1.Appeal allowed with costs
- 2.Order of Mead J set aside and substituted with an order for restitution of Kshs 35,042.50 by the respondent to the appellant with interest
- 3.Costs of the application heard by Mead J awarded to the appellant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Not stated
- Jurisdiction invoked
- Second appeal under section 3A/section 91(1) of the Civil Procedure Act (appeal against ruling of Mead J)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I would allow this appeal with costs, set aside the order made by Mead J and substitute therefore an order for restitution of the sum of Kshs 35,042.50 by the respondent to the appellant with interest augmented by the costs of the application heard by Mead J.
The whole of the decree of the High court was set aside, cast away and substituted as stated in our judgment and no part of it was excepted or left standing, not even the order for costs.
it was still an open issue, it was not res judicata not having been finally decided by the court which is a conditionprecedent to res judicata as required in Section 7 of the Civil Procedure Act
Issues in the judgment
#Respondent's name not given in the judgment extract; case number and appeal number not stated.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibogy v Chemweno [1981] KECA 49 (KLR)", Case Analysis (1981). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1981/49/eng@1981-01-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.