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Court of AppealDismissedCivil Appeal 243 of 2001

Ukay Estate Ltd & Nakumatt Holdings Ltd v Shah Hirji Manek Ltd, Ramesh Premchand Shah & Sunny Style Manufacturers Ltd

Court of Appeal of Kenya
17 February 2006
5,791 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that claims under different promissory notes are separate lawsuits, so a second debt suit was not barred as res judicata.

What this practically means

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Executive summary

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This unanimous Court of Appeal judgment (Deverell JA writing the leading judgment, with separate concurring judgments by Omolo and Waki JJ.A) dismissed an appeal against Onyango Otieno J's refusal to strike out HCCC No. 312 of 2001 as res judicata. The respondents had earlier sued the appellants in HCCC No. 883 of 1998 on two promissory notes dated September 1996 (the 'September '96 Notes'), obtaining summary judgment from Mbaluto J which was upheld on appeal and satisfied in full. The respondents then filed a second suit on two different promissory notes dated May 1996 (the 'May '96 Notes') against the same parties. The appellants sought to strike out the second suit under section 7 of the Civil Procedure Act and Explanation (4), contending the claim might and ought to have been included in the first suit. Deverell JA held that although the matters directly and substantially in issue in the two suits were the same, section 7 also requires that the parties be 'litigating under the same title'; a promissory note is a title (a ground of claim and evidence of right), and the two suits were founded on different notes, so section 7 did not bar the second suit. The court further held that where specific Kenyan legislation governs, it is inappropriate to rely on English abuse-of-process authority such as Henderson v Henderson, which lacks an equivalent statutory provision. The decision of the High Court was affirmed, though for different reasons, and the appeal was dismissed with costs.

Key legal issues

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01

Whether the Second Suit was res judicata under section 7 of the Civil Procedure Act

Holding

It was not barred: although the matters directly and substantially in issue were similar, the parties were not litigating under the same title, the titles being different promissory notes.

Reasoning

The court examined section 7 and Explanation (4), noting neither mentions 'cause of action'. The matter in issue in both suits was the enforceability of promissory notes allegedly executed/endorsed by the defendants. However, section 7 also requires that the parties be 'litigating under the same title'. The First Suit was founded on the September '96 Notes and the Second on the May '96 Notes; a promissory note is a 'title' (a ground of claim, evidence of right, basis of acquiring a right). Different notes mean different titles, so section 7 does not bar the Second Suit.

p. 8
02

Whether Explanation (4) of section 7 deems the May '96 Notes claim to have been in issue in the First Suit

Holding

Explanation (4) was not determinative because the same-title requirement of section 7 was not satisfied; the claim under the May '96 Notes could not be deemed directly and substantially in issue.

Reasoning

The court accepted that the matters directly and substantially in issue in the two suits were the same (enforceability of notes on similar grounds), which would ordinarily make the Second Suit a candidate for res judicata. But the further requirement of litigating under the same title failed, and this aspect was decisive. The court also relied on Mulla's illustrations showing that each year's rent, for example, is a separate and entire cause of action, and that subject matter may differ while the issue is the same.

p. 8
03

Whether English abuse-of-process authority (Henderson v Henderson) should govern

Holding

No; where Kenyan legislation specifically governs, reliance on foreign cases lacking equivalent provisions is inappropriate.

Reasoning

The court noted that section 7 has no equivalent in United Kingdom statutory law, being taken verbatim from the Indian Code of Civil Procedure. The UK approach proceeds through abuse of process under the equivalent of Order VI rule 13(1)(d). Since Kenya has specific legislation, English authorities such as Henderson v Henderson and cases following it should not be applied. Waki JA agreed, adding that Indian authorities are more persuasive.

p. 9

Legal principles established

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  • The test for res judicata under section 7 of the Civil Procedure Act is identity of the matter directly and substantially in issue and identity of the title under which the parties litigate, not identity of subject matter or cause of action.
  • Where specific Kenyan legislation applies to the issues, it is inappropriate to rely on foreign cases from jurisdictions lacking similar legislative provisions.
  • A promissory note under which a claimant sues constitutes a 'title' within the meaning of section 7 of the Civil Procedure Act.

Court orders

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  1. 1.Appeal dismissed with costs
On appeal from
High Court of Kenya at Milimani Commercial Courts
H.C.C.C. No. 312 of 2001
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under the Constitution/Law over appeals from the High Court (first appeal against an interlocutory ruling striking out); no specific article cited in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ukay Estate Ltd & Nakumatt Holdings Ltd v Shah Hirji Manek Ltd, Ramesh Premchand Shah & Sunny Style Manufacturers Ltd", Case Analysis (2006). Civil Appeal 243 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/373/eng@2006-02-17

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