Auto Springs Manufacturers Limited v Damisha Building Contractors Limited [2017] KECA 710 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the matter was res judicata under section 7 of the Civil Procedure Act
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.
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.
Whether the respondent was estopped from re-opening the suit after taxation and payment of the costs of the entire suit
The respondent was estopped by its own conduct from pursuing the claim for damages; the attempt amounted to an abuse of the court process.
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.
Whether the costs taxed were limited to the injunction application
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.
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.
Legal principles established
#- 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
#- 1.Appeal allowed
- 2.The ruling and order of the High Court given on 30/10/2013 in Machakos HCCC No. 141 of 2009 set aside
- 3.Each party to bear its own costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.