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Court of AppealDismissedCivil Appeal 38 of 2004

Joackim Mwandale Okessa v Thabiti Finance Co. Ltd.

Court of Appeal of Kenya
9 March 2007
EOE.O. O'KubasuJOJ.W. Onyango OtienoWDW.S. Deverell
2,119 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you can strike out a repeat lawsuit early as res judicata—you cannot relitigate issues already decided between the same parties.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (O'Kubasu, Onyango Otieno and Devertt, JJ.A) dismissed an appeal against a ruling of Mwera, J. striking out the appellant's suit in HCCC No. 700 of 1999 as against Thabiti Finance Co. Ltd as vexatious and an abuse of the court process. The appellant had earlier sued the same first and second respondents in HCCC No. 1375 of 1997 over the sale of L.R. NBI/Block 110/442 and motor vehicle KAA 738R, alleging fraud and seeking declarations, accounts and an injunction; that suit was dismissed with costs by Ole Keiwua, J. on 4th December 1998, and although the appellant filed a notice of appeal nothing further followed. The respondents applied under Order VI rule 13(1)(b) and (d) of the Civil Procedure Rules and Sections 3A and 7 of the Civil Procedure Act to strike out the later suit, and the High Court agreed. On appeal the appellant argued that res judicata could only be raised at trial and that the causes of action differed. The Court of Appeal rejected both contentions. It held that the respondents were entitled to bring the striking-out application, and that on applying Section 7 of the Civil Procedure Act the later suit was res judicata: both suits were founded on fraud and collusion, concerned the same two assets and the same parties, and the issues of the sale and the taking of accounts had been determined in the earlier suit. The appeal was accordingly dismissed with costs.

Key legal issues

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01

Whether res judicata can be raised on an application to strike out rather than at trial

Holding

The Court held that the respondents were entitled to bring the striking-out application under Order VI rule 13(1)(b) and (d); res judicata was a proper ground to be raised in that application.

Reasoning

The application was brought under Order VI rule 13(1)(b) and (d) of the Civil Procedure Rules, which permits striking out pleadings that are frivolous or vexatious or otherwise an abuse of the process of the court. The Court construed the rule as permitting a suit to be struck out for the stated reasons and held that where a suit is res judicata it can be brought under that provision. The appellant's contention that res judicata could only be raised at trial was rejected.

p. 3
02

Whether HCCC No. 700 of 1999 was res judicata in respect of HCCC No. 1375 of 1997

Holding

Yes. Both suits were based on fraud and collusion, related to L.R. NBI/Block 110/442 and motor vehicle KAA 738R, and the issues of sale and accounts were raised and determined in the earlier suit between the same parties.

Reasoning

Applying Section 7 of the Civil Procedure Act, the Court compared the claims and reliefs in both suits. The parties and subject matter were the same: the sale of the suit premises and motor vehicle, the allegation of fraud, and the taking of accounts. The earlier suit had been heard and finally decided by Ole Keiwua, J. The appellant had filed a notice of appeal against that judgment but nothing followed, so the earlier judgment stood as final and barred the subsequent suit.

p. 4

Legal principles established

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  • An objection of res judicata under Section 7 of the Civil Procedure Act may properly be raised by way of a chamber summons application to strike out a suit under Order VI rule 13(1)(b) and (d) of the Civil Procedure Rules; it need not await trial.
  • A suit whose matter directly and substantially in issue was already directly and substantially in issue in a former suit between the same parties, litigating under the same title, heard and finally decided by a competent court, is barred as res judicata under Section 7 of the Civil Procedure Act.

Court orders

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  1. 1.The appeal be and is hereby dismissed with costs
On appeal from
High Court of Kenya at Milimani Commercial Courts, Nairobi
H.C.C. Suit No. 700 of 1999
Jurisdiction invoked
First appeal from the High Court under the Court of Appeal's appellate jurisdiction (no specific provision stated 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, "Joackim Mwandale Okessa v Thabiti Finance Co. Ltd.", Case Analysis (2007). Civil Appeal 38 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/397/eng@2007-03-09

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