Salama Beach Hotel Limited & 3 others v Christopher Orina Kenyariri t/a Kenyariri and Associates Advocates [2019] KECA 893 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot revive a settled legal fees dispute by filing a fresh suit with new parties added.
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 respondent's application dated 5th June, 2017 seeking striking out of the appellants' suit was itself res judicata
- 2.Whether the appellants' suit (H.C.C.C No. 20 of 2015) was res judicata within the meaning of Section 7 of the Civil Procedure Act and amenable to being struck out
- 3.Whether the 3rd appellant lacked standing to institute the suit, having not been a party to the taxation proceedings
Key legal issues
#Whether the respondent's striking-out application of 5th June, 2017 was itself res judicata
It was not, because the issues of the suit's res judicata character and the 3rd appellant's standing had never been conclusively determined in prior proceedings; Chitembwe, J. had deferred the standing question to the hearing and made no definitive res judicata finding on the suit.
The court reviewed the prior rulings of Chitembwe, J. and found that although res judicata and the 3rd appellant's standing had been raised repeatedly, no judge had made a conclusive determination on the suit itself; prior findings related only to interlocutory applications. Quoting Shabhal, the court held that res judicata requires conclusive adjudication, which was absent.
Whether the appellants' suit H.C.C.C No. 20 of 2015 was res judicata
Yes. The issues in the suit - the legal fees payable and whether amounts paid by the appellants were factored into the taxation - had been heard and finally determined by Angote, J. and Chitembwe, J. in proceedings between the same parties.
The references, the OS and the suit all related to the legal fees payable to the respondent and whether payments made were accounted for in taxation. Angote, J. had dealt with the claimed payments, holding the additional-documents issue was 'water under the bridge', and Chitembwe, J. found the suit an abuse of process breaching res judicata. Adding the 3rd appellant as plaintiff did not alter the analysis.
Whether the 3rd appellant lacked standing as a non-party to the taxation proceedings
The court did not rest its decision on standing; it noted Korir, J. found the 3rd appellant a necessary party, and held that its introduction did not defeat res judicata since it was a party at some point in the taxation proceedings.
The court observed that Chitembwe, J. had earlier declined to make a definitive finding on the 3rd appellant's locus standi, deferring it to the hearing. Ultimately, the court adopted the reasoning that the 3rd respondent had been a party at some point in the taxation proceedings and its joinder could not upset a concluded res judicata finding.
Legal principles established
#- All the elements of res judicata under Section 7 of the Civil Procedure Act must be satisfied conjunctively before a suit or issue is barred
- Res judicata requires a prior adjudication that conclusively determined the rights of the parties; a mere raising of the issue without definitive determination does not create res judicata
- Bringing new parties or surrogates onto a claim does not avoid the res judicata bar on relitigating a concluded matter
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- H.C.C.C No. 20 of 2015
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (ruling in H.C.C.C No. 20 of 2015); no specific constitutional or statutory provision invoked
Relief refused
#The appellants' appeal against the ruling striking out their suit as res judicata
The suit was res judicata as the issues of payments made and legal fees payable had been conclusively determined in prior taxation proceedings and rulings
Costs
Appeal dismissed with costs to 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.
Accordingly, we find that the appeal lacks merit and is hereby dismissed with costs to the respondent.
It follows therefore, in determining whether a suit or application is res judicata, whichever the case may be, all the elements outlined in Section 7 must be satisfied conjunctively.
Consequently, we find that the issue of whether the suit was res-judicata had not been conclusively determined by any previous application or proceedings.
Having expressed ourselves as herein above was the suit res-judicata? Our answer to that question is a resounding yes.
Litigation must come to an end and attempts to litigate the same issues through surrogates cannot be accepted by the court.
The doctrine of res-judicata is founded on public policy and is aimed at achieving two objectives namely, that there must be finality to litigation and that an individual should not be harassed twice with the same account of litigation.
Issues in the judgment
#The judgment refers to the respondent's stay application inconsistently: the narrative describes an application 'dated 26th June, 2015' for striking out and an earlier stay application, but later refers to 'the application for stay of execution of taxation proceedings dated 25th November, 2015', which does not match any date given in the narrative.
Internal tension in the judgment: it first finds the respondent's striking-out application was NOT res judicata (issues never conclusively determined), then holds the appellants' suit WAS res judicata. This is reconcilable (different applications/suits) but potentially confusing.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salama Beach Hotel Limited & 3 others v Christopher Orina Kenyariri t/a Kenyariri and Associates Advocates [2019] KECA 893 (KLR)", Case Analysis (2019). Civil Appeal No. 100 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/893/eng@2019-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.