Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal No. 150 of 2014· [2017] KECA 697 (KLR)

Auto Springs Manufacturers Limited v Damisha Building Contractors Limited [2017] KECA 697 (KLR)

Court of Appeal of Kenya
10 March 2017
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
2,147 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that a party who accepts full payment of costs for an entire suit cannot later reopen it to claim damages.

What this practically means

#

Executive summary

#
The respondent sued the appellant in 2005 seeking removal of a fence, vacation of the suit property, injunction and damages for trespass and loss of user. The respondent applied to strike out the appellant's defence and counterclaim; Osiemo, J. granted the application and awarded costs of the application and the entire suit. The parties' bill of costs for the entire suit was taxed by consent, a certificate of costs issued, and the appellant paid in full. In 2008, however, the respondent sought and obtained interlocutory judgment and set the matter down for formal proof on damages. The appellant's preliminary objection that the suit was res judicata and that the respondent was estopped was dismissed by Mutende, J., who held there was no former suit since it was the same suit transferred from Nairobi to Machakos. The Court of Appeal agreed that res judicata under section 7 of the Civil Procedure Act did not strictly apply, as the transferred suit remained one suit. The Court nevertheless allowed the appeal on the estoppel ground: the costs taxed and paid were for the entire suit, not merely the injunction application, and the respondent's conduct reasonably implied the matter had been finalized. Pursuing interlocutory judgment years later was an abuse of court process and impermissible litigation by instalment, contrary to the principle in Henderson v Henderson. The Court set aside the High Court ruling and ordered each party to bear its own costs.

Key legal issues

#
01

Res judicata where a suit is transferred between courts

Holding

Res judicata was not applicable because the transferred suit remained one suit; there was no former suit and a subsequent one.

Reasoning

The suit filed in Nairobi as HCCC No. 79 of 2005 was transferred to Machakos under section 18 of the Civil Procedure Act and renumbered 141 of 2009. The Court of Appeal agreed with the learned judge that there was only one suit and one decision. Strictly, therefore, section 7 of the Civil Procedure Act, which presupposes a former suit and a subsequent suit, was not engaged.

p. 3
02

Estoppel arising from taxation and full payment of costs of the entire suit

Holding

The respondent was estopped from reopening the suit because the costs taxed and paid were for the entire suit, not merely the injunction application.

Reasoning

The application of 10th March 2005 sought costs of the application and the entire suit; the bill of costs covered instructions for the whole action including the striking-out application; and the certificate of taxation related to the entire suit. The appellant reasonably believed the matter was concluded. The respondent's contention that only the injunction application was taxed was rejected as baseless.

p. 3
03

Abuse of court process and litigating by instalment

Holding

Seeking interlocutory judgment long after payment of costs of the entire suit was an abuse of the court process and impermissible litigation by instalment.

Reasoning

Applying the Henderson v Henderson principle, a party must bring forward its whole case. The omission, whether by choice or inadvertence, to pursue the damages claim before filing the final bill of costs rendered the later claim an abuse of process. Public policy demands finality in litigation, and interlocutory judgment under Order IXA was unavailable where the defendant had appeared and filed a defence.

p. 4

Legal principles established

#
  • Unless the court directs the immediate taxation and payment of costs in an interlocutory application, there should only be one taxation of costs at the tail end of a suit
  • Where there has been only one suit transferred between courts under section 18 of the Civil Procedure Act, res judicata is inapplicable because there is no former suit and a subsequent one
  • A party whose conduct reasonably implies that a matter has been finalized, including by filing and receiving full payment of costs for the entire suit, is estopped from reopening the suit and cannot litigate by instalment

Court orders

#
  1. 1.The ruling and order of the High Court given on 30/10/2013 in Machakos HCCC No. 141 of 2009 is set aside
  2. 2.Each party bears its own costs

Authorities

#

Legislation

  • Civil Procedure Actsection 7
  • Civil Procedure Actsection 18
  • Civil Procedure Actsection 2
  • Civil Procedure Codesection 27
  • Civil Procedure RulesOrder IXA

Cases cited (2)

  • HOMI DARA ADRINWALLA V JEANNE HOGAN & ANOTHER
    [1966] E.A. 290
  • HENDERSON V HENDERSON
    [1843] Hare 100 at 115
On appeal from
High Court of Kenya at Machakos
HCCC No. 141 of 2009
Jurisdiction invoked
First appeal to the Court of Appeal against the Ruling and Order of the High Court (as per the appeal from the ruling dated 30th October 2013 in HCCC No. 141 of 2009)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Auto Springs Manufacturers Limited v Damisha Building Contractors Limited [2017] KECA 697 (KLR)", Case Analysis (2017). Civil Appeal No. 150 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/697/eng@2017-03-10

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