George Gikubu Mbuthia & 3 others v Small Enterprises Finance Ltd & another [2015] KECA 366 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot keep filing fresh applications on the same issue—res judicata applies to applications, not just full lawsuits.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant's application dated 10th December 1996, seeking an interlocutory injunction and other relief, was res judicata in light of previous applications between the same parties.
- 2.Whether a defective charge document (alleged non-compliance with Section 35 of the Advocates Act and Sections 49(4) and 56(1) of the Transfer of Property Act) could found the exercise of statutory power of sale.
Key legal issues
#Whether the application dated 10th December 1996 was barred by res judicata
Yes. The complaints raised, including the challenge to the charge documents, could and ought to have been raised in the previous applications before Ringera J, Ole Keiwa J and the Court of Appeal, and no changed circumstances or new cause of action were alleged.
The appellant had previously filed applications dated 24th July 1996 and 6th November 1996, and a Rule 5(2)(b) application (Civil Application No. Nai 373 of 1996), all seeking to restrain the sale of the same property. The documents complained of were in his possession all along. Explanation (4) to Section 7 deems matters which might and ought to have been raised to have been in issue. The Court of Appeal had already declined to grant an injunction on the same grounds.
Whether the illegality of the charge document could be pursued through successive interlocutory applications
No. Such a challenge belongs to the hearing of the suit, not to repeated interlocutory applications.
The court declined to analyse the merits of the charge document's legality, as the status of the parent suit before the High Court was unclear. The complaint regarding the charge documents, grounded on Section 35 of the Advocates Act and Sections 49(4) and 56(1) of the Transfer of Property Act, should be resolved at the hearing of the suit rather than through repeated interlocutory applications.
Legal principles established
#- The principle of res judicata under Section 7 of the Civil Procedure Act applies not only to suits but also to applications made in suits.
- Any matter which might and ought to have been raised in a former suit or application is deemed to have been directly and substantially in issue, per Explanation (4) to Section 7.
- The object of res judicata is to prevent parallel litigation over the same matter and to bring an end to litigation; a litigant should not be vexed twice over the same matter.
Court orders
#- 1.Appeal dismissed
- 2.No order as to costs (respondents and counsel did not attend the hearing)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- H.C.C.C. No. 3088 of 1994
- Jurisdiction invoked
- First appeal to the Court of Appeal against an interlocutory ruling of the High Court (Civil Appeal No. 32 of 1997)
Relief refused
#Interlocutory injunction restraining sale of LR No. 36/11/1 Nairobi
Application was res judicata; the complaints could have been raised in previous applications
Striking out of the respondents' suit as scandalous, vexatious, frivolous or an abuse of process
Not granted by the trial court and not established on appeal
Setting aside proceedings and orders made on 25th November 1996
Not granted by the trial court; appeal dismissed
Costs
No order as to costs, since neither the respondents nor their counsel attended the hearing
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is also now settled that the principle of res judicata applies to applications made in suits.
Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit
The object of the principle is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter.
The challenge made against the charge documents could have been made a ground of attack in the previous applications.
We order this appeal be and is hereby dismissed. As neither the respondents nor their counsel attended the Court when this appeal came up for hearing, we make no order as to costs.
Issues in the judgment
#The judgment states the appellant 'also sought the striking out of the respondents’ suit... and for setting aside proceedings and orders made on 25th November, 1996' but then notes the latter relief relates to proceedings of 15th October 1996, an internal inconsistency in dates.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Gikubu Mbuthia & 3 others v Small Enterprises Finance Ltd & another [2015] KECA 366 (KLR)", Case Analysis (2015). Civil Appeal No. 32 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/366/eng@2015-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.