Kenya Trypanosomiasis Research Institute v Gusinjili (Suing for and on behalf of 112 Plaintiffs) (Civil Appeal 190 of 2015) [2019] KECA 240 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated an institute's bid to overturn a Kshs. 42 million judgment, confirming parties must be heard before decisions are made against them.
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 appellant's application dated 16th December 2009 was res judicata in light of the determination of the application dated 2nd August 2010
- 2.Whether the application was barred on the principle of estoppel
- 3.Whether the deponent of the appellant's supporting affidavit dated 16th December 2009 was duly authorised to swear it, and whether that issue could be raised by way of preliminary objection
- 4.Whether the appellant was condemned unheard, contrary to the rule of natural justice, audi alteram partem
Key legal issues
#Res judicata - identity of issues versus identity of prayers
The application dated 16th December 2009 was not res judicata. Although both applications sought the same prayer (to review and set aside the judgment of 10th July 2009), the issues differed: the 2010 application was based on abatement of the suit, while the 2009 application raised the distinct ground that the appellant was condemned unheard for lack of service. Waweru J. made no definitive determination on the service issue, so it was never heard and finally determined.
Applying the principles from Kenya Commercial Bank Ltd v Benjoh Amalgamated Ltd and Section 7 of the Civil Procedure Act, the court required that the issue have been directly and substantially in issue, between the same parties under the same title, and heard and finally determined by a competent court. Here the service/audi alteram partem issue was 'suspended in limbo awaiting determination' and was never adjudicated. Similarity of the prayer sought does not establish res judicata; the issues raised must be the same.
Authority to swear an affidavit for a corporation and preliminary objections
The objection on the deponent's authority was not properly a preliminary objection because it was a question of fact requiring evidence. The deponent swore he was duly authorised and no countervailing evidence was adduced by the respondent, so the objection had to fail.
Relying on Order 9 rule 2(c) and Order 4 Rule 1(4) of the Civil Procedure Rules, and on Makupa Transit Shade Ltd and Spire Bank Ltd, the court held that it suffices for a deponent to state he is duly authorised, shifting the evidential burden to the challenger. Rule 1(4) was not intended to be used as a procedural technicality to strike out suits where no evidence of lack of authorisation was produced. Factual disputes cannot be resolved on a preliminary objection, which is narrow in scope and confined to points of law.
Right to be heard - audi alteram partem
The right to be heard is a cardinal rule of natural justice; every party, no matter how seemingly frivolous its case, must be given a fair hearing. The learned Judge's failure to look beyond the face of the orders sought was a misdirection justifying appellate interference.
The court emphasized that the appellant's claim that it was condemned unheard - through non-service of the application to cease acting and of the hearing notice - was an issue worthy of litigation and determination, citing Henderson v Henderson to note that res judicata extends to points properly belonging to the litigation. Since that issue had never been determined, striking out the application denied the appellant a hearing. The court therefore concluded the preliminary objections lacked merit.
Legal principles established
#- Res judicata is determined by identity of the issues heard and finally determined, not by similarity of the prayers or orders sought; a court must look beyond the face of the orders to the issues in dispute.
- Whether a deponent was duly authorised to swear an affidavit on behalf of a corporation is a question of fact that cannot be determined on a preliminary objection; absent evidence of lack of authority, a sworn statement of due authorization stands.
- A preliminary objection is founded on law alone and cannot raise substantive factual issues requiring interrogation of evidence.
Court orders
#- 1.The appeal is allowed
- 2.The appellant's application dated 16th December 2009 is reinstated for hearing on a priority basis at the High Court
- 3.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Constitution and the Appellate Jurisdiction Act (specific provision not stated in the judgment)
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 fact that both applications sought the same prayer “…be pleased to review and set aside its judgment/decree dated 10th July, 2009” does not mean that the issues raised are the same.
A preliminary objection by its very nature is founded on law and not fact. The objection must be based on points of law, clearly set out in the pleadings and which by clear implication have the effect of disposing the suit.
It is obvious that whether or not the deponent was an authorized agent is a matter to be decided on evidence and none has been adduced by the respondent.
The upshot of the above is that we allow the appeal and consequently direct that the application be reinstated for hearing on a priority basis at the High Court. Each party to bear its own costs.
Issues in the judgment
#Internal inconsistency in the dates of the judgment referred to: the High Court judgment is elsewhere consistently dated 10th July 2009, but the quoted ruling refers to a judgment of 10th July, 2010.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Kenya Trypanosomiasis Research Institute v Gusinjili (Suing for and on behalf of 112 Plaintiffs) (Civil Appeal 190 of 2015) [2019] KECA 240 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/240/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.