Kombe v Omar & 2 others (2008) 3 KLR (EP) 391 [2007] KECA 512 (KLR)
The bottom line
#Kenya's Court of Appeal ruled you must claim all costs in your first appeal; if you forget, res judicata bars you from raising them later.
What this practically means
#Executive summary
#Key legal issues
#Whether the claim for costs in favour of the appellant was res judicata following the judgment in Civil Appeal No 50 of 2006
The question of the costs to be awarded to the appellant ought to have been raised in the previous appeal, and the claim is now barred by res judicata under section 7 of the Civil Procedure Code read with Explanation 4.
Both appeals arose from the same judgment of the High Court in Election Petition No 1 of 2003, involved the same parties (albeit in different roles) and the same matters directly and substantially in issue, namely the decision on the election petition and the award of costs. Counsel for the appellant addressed the Court fully on costs in the earlier appeal and was relieved of the burden of costs, but made no claim to an award of costs. Under Explanation 4 to section 7, a matter which might and ought to have been raised is deemed to have been in issue. Reconsidering it now would amount to the Court sitting on appeal on its own decision.
Whether the stay and subsequent revival of this appeal, after judgment in Civil Appeal No 50 of 2006, was procedurally proper
The arrangement by which the earlier-filed appeal proceeded first and this appeal was stayed pending its determination was proper and consonant with rule 100 of the Court of Appeal Rules.
Rule 100 permits the Court, for sufficient reason, to order two or more appeals to be heard one immediately after the other, or to order any of them to be stayed until after determination of another. Civil Appeal No 50 of 2006 was the first to be filed and was therefore properly heard first; the parties proposed, and the Court accepted, that this appeal be stayed and mentioned on the date of delivery of judgment in the first appeal.
The Court's disapproval of the delay in finalizing an election matter
The Court deprecated the activities resulting in the delay in finalizing the matter, which in substance ended with the decision in Civil Appeal No 50 of 2006, noting that such delay is unfair to the country in an election matter.
The dispute before the Court concerned only the question of costs, the substantive issues having been concluded by the judgment in the first appeal. The continuation of proceedings after that decision caused further delay in an election petition, a category of litigation in which expedition is of public importance because of the effect on the country.
Legal principles established
#- A matter which might and ought to have been made a ground of defence or attack in a former suit between the same parties is deemed to have been directly and substantially in issue in that suit, and a party who failed to raise it cannot raise it in a subsequent appeal between the same parties arising from the same decision - including a claim to costs.
- Where a court has already determined the question of costs between the same parties in a prior appeal, it cannot revisit that question in a later appeal, as that would amount to sitting on appeal on its own decision.
Court orders
#- 1.The appeal is dismissed
- 2.The appellant shall pay the costs of this appeal to the first, second and third respondents
- On appeal from
- High Court of Kenya at Mombasa
- Election Petition No 1 of 2003
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal under the Court of Appeal Rules (cap 9 Sub-Leg), rule 100; the judgment does not expressly invoke a constitutional provision.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kombe v Omar & 2 others (2008) 3 KLR (EP) 391 [2007] KECA 512 (KLR)", Case Analysis (2007). Civil Appeal No 52 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/512/eng@2007-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.