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Court of AppealDismissedCivil Appeal No. 239 of 2004· [2006] KECA 275 (KLR)

Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited

Court of Appeal of Kenya
31 March 2006
ROR.S.C. OmoloPWP.N. WakiWDW.S. Deverell
4,831 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a consent judgment is as binding as any trial judgment and blocks you from ever re-filing the same dispute.

What this practically means

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Executive summary

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The appellants borrowed from Kenya Commercial Bank in 1988, charging three parcels of land as security. After the relationship soured, they filed H.C.C.C. No. 1219 of 1992 seeking declarations of frustration and breach, which was terminated by a consent order of 4th May 1992 obliging them to pay outstanding sums, failing which the bank could realise its securities. Years of further suits followed. In 1997 Githinji, J set aside the consent judgment, but the Court of Appeal in Civil Appeal No. 276 of 1997 restored it. The appellants then filed H.C.C.C. No. 1576 of 1999 seeking declarations that the decree was ambiguous and unenforceable, accounts, an injunction and damages, later amending to claim special damages of Kshs.863,317,998/- as projected profit. Lenaola, Ag. J dismissed the suit as res judicata and an abuse of process. On appeal, the Court of Appeal (Omolo, Waki and Deverell, JJ.A) dismissed the appeal in its entirety. It rejected the complaint about the approved decree, held that the trial Judge's sympathetic remarks about the appellants' witness were grounded in the record and evidence and thus not extraneous (distinguishing the SHEIK v Highway Carriers line), and held that Mbogholi-Msagha, J's 2000 ruling had merely found triable issues, leaving res judicata and limitation for trial. The Court affirmed that a consent judgment is as binding as a judgment after trial, that the res judicata bar in section 7 of the Civil Procedure Act is absolute, and that the special damages claim ought to have been raised in the first suit under Explanation (4). The appeal was dismissed with costs to the bank.

Key legal issues

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01

Res judicata arising from a consent judgment

Holding

The consent judgment of 4th May 1992 in H.C.C.C. No. 1219 of 1992, restored by the Court of Appeal in Civil Appeal No. 276 of 1997, rendered H.C.C.C. No. 1576 of 1999 res judicata; the only arguably new claim (special damages of Kshs.863,317,998/-) ought to have been raised in the first suit under Explanation (4) to section 7.

Reasoning

The parties, subject matter and issues in the two suits were the same. A consent judgment is a final determination; a matter admitted expressly or impliedly attracts res judicata without trial. The special damages claim, being a claim for projected profit, might and ought to have been made in the first suit, which already contained a claim for Kshs.13.125 million and general damages; only the amount differed, which does not escape section 7.

p. 7
02

Whether the trial Judge considered extraneous matters

Holding

Ground 2 failed. The Judge's sympathetic remarks about the witness were drawn from the record and evidence, unlike the personal-knowledge remarks condemned in the SHEIK case.

Reasoning

The Court distinguished SHEIK v Highway Carriers, where the judge relied on personal knowledge of a firm of advocates and unsupported assumptions. Lenaola, Ag. J's remarks were based on the record and his impressions of witnesses; counsel identified no remark that was false or unprovable by evidence. A judge may comment on evidence and demeanour.

p. 5
03

Whether the trial Judge exercised appellate jurisdiction over Mbogholi-Msagha, J's ruling

Holding

Ground 3 failed. The ruling of 25th February 2000 merely found triable issues and left res judicata, abuse of process and limitation to be determined at trial.

Reasoning

Nowhere in the six-page ruling did Mbogholi-Msagha, J conclude that the suit was not res judicata, not an abuse of process or not time-barred; he left those issues for trial. Lenaola, Ag. J was therefore entitled to hear and determine them and did not exercise appellate jurisdiction. No issue decided by the Court of Appeal was shown to have been redetermined differently.

04

Defective decree / record of appeal

Holding

Ground 1 was rejected as unworthy of consideration; any variance in the approved decree was attributable to the appellants themselves.

Reasoning

If the approved decree was defective, the whole record of appeal would be incurably defective, a complaint the appellants could not raise against their own record. The Court declined to engage further with the ground.

p. 4
05

Abuse of process and limitation

Holding

Having found the suit res judicata, the Court declined to determine abuse of process and limitation, but observed that relitigating determined matters is itself an abuse of process.

Reasoning

Once issues have been previously determined, no court is entitled to try them again, so whether the suit was filed within or outside the limitation period could not matter. Relitigation of determined issues is an abuse of the court's process.

p. 8

Legal principles established

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  • A consent judgment, once restored, is treated as the judgment of the court and is as binding as a judgment after trial; it grounds res judicata.
  • The prohibition in section 7 of the Civil Procedure Act against trying res judicata matters is in absolute terms.
  • A matter admitted expressly or impliedly in a former suit attracts res judicata immediately; no trial is needed.
  • A judge is entitled to express views on the evidence and the demeanour of witnesses before him; that is not consideration of extraneous matters.
  • Bringing matters already determined before a court is an abuse of its process.

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure Actsection 7 (including Explanations 1, 3 and 4)
  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder 6 Rule 13(1)(b) and (d)
  • Civil Procedure RulesOrder 44 Rule 1
  • Limitation Act

Cases cited (2)

  • SHEIK t/a HASA HAULIERS V. HIGHWAY CARRIERS LTD
    [1982-88] KLR 306

    A judge must limit comments to matters relevant to the case; extraneous remarks and personal knowledge vitiate a ruling.

  • KAMUNGE & OTHERS V PIONEER GENERAL ASSURANCE SOCIETY LTD
    [1977] EA 263 at pg. 265

    Authority on res judicata relied on by the trial Judge (cited via Kuloba's Judicial Hints on Procedure).

On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1576 of 1999
Jurisdiction invoked
First appellate jurisdiction over the High Court (Constitution of Kenya, s 64 as then applicable; appeal as of right against High Court judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (15)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited", Case Analysis (2006). Civil Appeal No. 239 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/275/eng@2006-03-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.