Thomas Owen Ondiek & another v National Bank of Kenya Limited & another [2015] KECA 298 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed the Ondieks' claims because they should have raised them in an earlier lawsuit and failed to prove their losses.
What this practically means
#Executive summary
#Key legal issues
#Res judicata - constructive closure of claims
All the 1st appellant's claims arising from the termination of employment, including loss of earnings, loan repayment, damages for the search and defamation, were res judicata.
The termination was grounded on the alleged illegal money lending business. Applying Henderson v Henderson as described in Yat Tung Investment, every point which properly belonged to the subject of litigation in HCCC No. 115 of 1999 and which reasonable diligence could have raised there is barred from being relitigated in a later suit between the same parties.
Notices to produce and adverse inference
The trial judge was entitled to decline to draw an adverse inference from the respondents' non-production of the search inventory where the appellants never invoked Section 22(a) of the Civil Procedure Act to compel production.
The court found the judge's discretion unfettered and cited Mbogo v Shah, holding that mere service of notices to produce without invoking the statutory compulsion provisions gave the appellate court no basis to fault the judge's refusal to draw the adverse inference.
Limitation and amendment of pleadings
The 2nd appellant's claims for loss of cash and loss of business, though introduced by amendment more than seven years after filing, were not statute barred under the Limitation of Actions Act.
Under the doctrine of relation back, an amended pleading speaks from the date of the original plaint, so the claims were deemed lodged at filing. However, the court still dismissed the claims as an afterthought and for failure to plead and prove special damages strictly.
Special damages - pleading and proof
The 2nd appellant's unquantified claim of loss of business at Kes.5/= for every Kes.1/= invested failed for want of specific pleading and strict proof.
Special damages must be specifically pleaded and strictly proved. The 2nd appellant never stated how much she invested or quantified her loss, and her police report made no mention of lost cash or business documents, undermining the credibility of the late-raised claim.
Legal principles established
#- An issue or claim that might or ought to have been raised in an earlier suit between the same parties cannot be raised in a subsequent suit - the Henderson v Henderson extension of res judicata under Explanation 4 to Section 7 of the Civil Procedure Act.
- A first appellate court must re-evaluate the evidence on record afresh before disturbing a trial judge's findings.
- Amended pleadings, once filed with leave or consent, speak from the date of the original plaint under the doctrine of relation back for limitation purposes.
Court orders
#- 1.Appeal dismissed with costs
- On appeal from
- High Court of Kenya at Eldoret
- H.C.C.C. No. 175 of 1999
- Jurisdiction invoked
- First appellate jurisdiction under the Civil Procedure Act and Appellate Jurisdiction Act (appeal from High Court judgment; provision not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Thomas Owen Ondiek & another v National Bank of Kenya Limited & another [2015] KECA 298 (KLR)", Case Analysis (2015). Civil Appeal No. 182 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/298/eng@2015-10-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.