John Florence Maritime Services Ltd & another v Cabinet Secretary for Transport and Infrastructure & 3 others (Civil Appeal 42 of 2014) [2015] KECA 472 (KLR)

Res judicata is a fundamental principle of law tied to jurisdiction, embedded in Section 7 of the Civil Procedure Act and reinforced by the court's inherent power to prevent abuse of process under Rule 3(8) of the Mutunga Rules. Its rationale - finality of litigation, economic use of court resources, and stability of judgments - applies equally to constitutional claims. Because rights evolve and mutate, however, the doctrine must be invoked only in the rarest and clearest of cases.

The court was not aware of any legal edict requiring a formal application, and the appellants cited no such authority. The respondents had raised the plea in their grounds of opposition and affidavits long before the hearing, giving the appellants notice. Deciding the issue in limine after hearing the parties is not the same as acting suo moto.

The cause of action in both suits was the imposition of certification levies (FERI and COD) by OGEFREM through the Kenya Maritime Authority, traceable to the Kenya-DRC bilateral agreement. The naming difference between 'Office De Gestion Du Freit Multimodal' and 'Office De Gestion Du Freit Maritime (OGEFREM)' was immaterial: both were represented by the same person, the names were used interchangeably, and they performed the same function. The JR applicants represented clearing and forwarding operators like the appellants, who knew of the JR and stood by, so under the principle in Wytcherley v Andrews they were bound by the result.

The respondents filed grounds of opposition and replying affidavits raising res judicata, and the record showed extensive submissions by all parties on the issue. The court characterised the appellants' claim of being denied the right to be heard as a false accusation, noting the judge's ruling in limine followed hearing of the parties.

Relying on Halsbury's Laws and Craven v Smith as cited by counsel, the court held that in deciding what questions were determined in an earlier judgment, a court may look at the judge's reasons and notes and is not restricted to the formal record. The judge in the Petition had also heard the interlocutory leave application in the JR, so was not a stranger to the facts of both cases.