Kundan Singh Construction Limited & another v Tanzania National Roads Agency [2019] KECA 45 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a suit cannot block another suit as res judicata unless the first case was actually heard and decided on its merits.
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 Mombasa suit was res judicata in relation to the Milimani suit
- 2.Whether the learned judge rightly declined to exercise her discretion to strike out the Mombasa suit
Key legal issues
#Whether the Mombasa suit was res judicata in relation to the Milimani suit
It was not: the subject matters differed and the Milimani suit was never heard and determined on its merits.
The court examined the four elements of res judicata. Although the parties were substantially the same, the subject matters differed: the Milimani suit was a construction dispute destined for arbitration, seeking only injunctive relief under the Arbitration Act, while the Mombasa suit concerned claims under the performance guarantees issued by the bank, which was not party to the arbitration agreement. Further, the Milimani suit was marked as closed without any determination on the merits, so nothing within it was finally adjudicated.
Whether a suit not heard on its merits can render another suit res judicata
No. Res judicata requires a final judgment on the merits by a court of competent jurisdiction.
Relying on section 7 of the Civil Procedure Act and the Uhuru Highway elements, the court held that the Milimani suit, having been marked as spent and closed after publication of the arbitral award, never had its issues ventilated or evidence tested under cross-examination. A matter once judicially decided is finally decided, but the Milimani suit involved no such judicial decision on the merits, so it could not bar the Mombasa suit.
Whether the Court should interfere with the trial judge's discretionary refusal to strike out the Mombasa suit
No. The judge properly exercised her discretion and the Court found no basis to interfere.
Applying the Mbogo vs Shah standard, the Court found the learned judge had correctly compared the pleadings, concluded the issues were not the same, and that the Milimani suit was not heard on its merits. The circumstances had changed between Azangalala, J.'s stay order and Kasango, J.'s ruling, and her exercise of discretion was neither erroneous nor productive of misjustice.
Legal principles established
#- The elements of res judicata are conjunctive and must all be present, including that the former suit was heard and finally decided on its merits; a suit closed without determination on the merits cannot found a plea of res judicata.
- An appellate court will not interfere with the exercise of a trial court's discretion unless it misdirected itself or was clearly wrong resulting in misjustice.
- A suit filed solely to obtain interim injunctive relief under sections 6 and 7 of the Arbitration Act pending arbitration ends once such relief is granted; it does not determine the underlying dispute on the merits and cannot ground res judicata.
- A dispute against a guarantor under performance guarantees cannot be determined in arbitration under the main construction contract where the guarantor is not a party to the arbitration agreement.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to Tanroads, the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya at Mombasa
- HCC Case No. 8 of 2010
- Jurisdiction invoked
- First appeal / appeal as of right from the High Court ruling (Civil Appeal No. 14 of 2015 under the Court of Appeal's appellate jurisdiction)
Relief refused
#Setting aside the ruling of Kasango, J. and striking out the Mombasa suit as res judicata
The Mombasa suit was not res judicata because the Milimani suit was not heard on its merits and the subject matters of the two suits differed
Costs
The appeal is dismissed with costs to Tanroads, the respondent.
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.
The appeal is not merited and is dismissed with costs to Tanroads, the respondent.
(a) the former judgment or order must be final; (b) the judgment or order must be on merits; (c) it must have been rendered by a court having jurisdiction over the subject matter and the parties; and (d) there must be between the first and the second action identity of parties, of subject matter and cause of action.
those elements of res judicata are conjunctive rather than disjunctive and must all be present before a suit or an issue is deemed res judicata on account of a former suit
It is trite that once a dispute was referred to arbitration, and the injunctive relief was granted, there was nothing further left for the court to do. It is the arbitrator or arbitrators, and not the court that then have jurisdiction to determine the dispute.
The sum and substance of the whole rule is that a matter once judicially decided is finally decided.
Issues in the judgment
#The judgment contains internal inconsistencies in dates: the Milimani suit (Civil Suit 164 of 2009) is described as filed on 12th March 2010, and later orders refer to a 'Plaint dated 12th March 2009'; a further order anticipates directions on '24th January 2014' yet the orders were issued on 6th June 2014; the plaint in the Milimani suit is also referred to as 'Civil Case No. 164 of 2007 (sic)'.
The first suit's description is internally contradictory - it is called 'Civil Suit 164 of 2009' but stated to have been 'filed in Nairobi on 12th March 2010', and the trial judge's quoted ruling refers to 'Civil Case No. 164 of 2007 (sic)'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kundan Singh Construction Limited & another v Tanzania National Roads Agency [2019] KECA 45 (KLR)", Case Analysis (2019). Civil Appeal No. 14 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/45/eng@2019-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.