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Court of AppealPartially AllowedCivil Appeal No. 150 of 2014· [2017] KECA 710 (KLR)

Auto Springs Manufacturers Limited v Damisha Building Contractors Limited [2017] KECA 710 (KLR)

Court of Appeal
10 March 2017
2,152 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal stopped a landowner from claiming damages after its full legal costs were taxed and paid, ruling litigation must end.

What this practically means

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Executive summary

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The respondent sued the appellant in 2005 seeking removal of a fence, eviction, an injunction, and damages for trespass and loss of user over L.R. No. Mavoko Municipality/Block 6/789. In 2005 the High Court (Osiemo, J.) struck out the appellant's defence and counterclaim, granted the respondent the suit property, and awarded costs of the application and the entire suit. The bill of costs was taxed by consent at Kshs.98,195, a certificate issued, and the appellant paid the costs in full in 2006. In 2008 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. on 30th October 2013, prompting this appeal. The Court of Appeal agreed with the High Court that res judicata was strictly inapplicable, since the transferred suit was one continuous suit with no former and subsequent suit. However, the court held that the respondent's conduct - seeking striking out with costs of the entire suit, filing and taxing a bill covering the whole action, and receiving full payment - reasonably implied finality and estopped it from reviving the damages claim. Relying on Henderson v Henderson, the court found the late pursuit of damages an abuse of the court process, allowed the appeal, set aside the High Court ruling, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the matter was res judicata under section 7 of the Civil Procedure Act

Holding

Res judicata did not apply because there was only one suit, the Nairobi suit having been transferred to Machakos under section 18 of the Civil Procedure Act; there was no former suit and a subsequent one.

Reasoning

Section 7 requires a matter directly and substantially in issue to have been heard and finally decided in a former suit between the same parties. HCCC No. 79 of 2005 filed in Nairobi was transferred under section 18 and renumbered HCCC No. 141 of 2009. Since the striking-out ruling arose within the same, continuous suit, the threshold requirement of a former suit was absent, and the doctrine was strictly inapplicable.

p. 3
02

Whether the respondent was estopped from re-opening the suit after taxation and payment of the costs of the entire suit

Holding

The respondent was estopped by its own conduct from pursuing the claim for damages; the attempt amounted to an abuse of the court process.

Reasoning

The respondent's application sought costs of the application and the entire suit; its bill of costs covered the whole action; the certificate of taxation related to the entire suit; and the costs were taxed by consent and paid in full in 2006. The respondent's conduct reasonably implied the matter was finalised. Applying the Henderson v Henderson principle, omitting to pursue damages before filing the final bill of costs rendered the later claim an abuse of process.

p. 4
03

Whether the costs taxed were limited to the injunction application

Holding

The contention that the taxed costs related only to the injunction application was rejected; the costs of the entire suit, including the injunction application, were paid in 2006.

Reasoning

The bill of costs itemised instructions fees for acting for the plaintiff in an action for recovery of the land and for injunctive reliefs, and an item for the striking-out application. The certificate of taxation covered the entire suit, and the application itself had prayed for costs of the application and the entire suit. The court therefore held that the taxed and paid costs were for the whole suit, defeating the respondent's argument.

p. 3

Legal principles established

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  • Res judicata under section 7 of the Civil Procedure Act does not apply where there is only one suit, such as where a suit has been transferred from one court to another; there must be a former suit and a subsequent suit between the same parties.
  • A party whose entire suit has been determined, whose bill of costs for the entire suit has been taxed by consent and paid in full, is estopped by its own conduct from re-opening the suit; doing so is an abuse of the court process.
  • Except where the court directs immediate taxation, costs are to be taxed once, at the tail end of a suit.
  • A party cannot be permitted to litigate by instalment, and public policy demands an end to litigation.

Court orders

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  1. 1.Appeal allowed
  2. 2.The ruling and order of the High Court given on 30/10/2013 in Machakos HCCC No. 141 of 2009 set aside
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure ActSection 18
  • Civil Procedure ActSection 2
  • Civil Procedure CodeSection 27
  • Civil Procedure RulesOrder IXA rule 3

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 under the Constitution and the Court of Appeal Act (appeal from the High Court); specific enabling provision not stated in the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Auto Springs Manufacturers Limited v Damisha Building Contractors Limited [2017] KECA 710 (KLR)", Case Analysis (2017). Civil Appeal No. 150 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/710/eng@2017-03-10

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